--On Monday, April 09, 2007 12:49 PM -0400 "Steven M. Bellovin"
<smb at cs.columbia.edu> wrote:
The IETF chair, Russ Housley, would like the opinion of the
IPR WG on what to do when an IPR disclosure occurs belatedly.
There are three cases I can see:
(a) Intentional non-disclosure
(b) Unintentional non-disclosure (which appears to be the case
in the situation currently under discussion on the IETF
mailing list)
(c) Third-party patents that were not known to the WG or the
IETF when the document was adopted.
Our focus thus far has been on (a), and our attitude has been
"let the government(s) take action" (see, for example, the
Rambus case (
http://www.law.com/jsp/article.jsp?id=1161606920964 ) and the
Dell case ( http://www.ftc.gov/opa/1995/11/dell.htm ). We've
traditionally assumed there was nothing we could do about (c),
since such patents could appear at any time
Steve,
The questions, then, are these:
Should the IETF have a formal policy? Alternatively, should
we leave it to the IESG's judgment?
I think that, if any action was taken that might have come out differently
had the claimed encumbrances been known, those actions should be reviewed.
If the document is still in a WG, rather than having been processed into
an RFC, I believe the WG should be required to do that review and reach an
explicit conclusion before proceeding with the document. If the document
has been approved, then I think the IESG should conduct that review.
However the review is conducted, I believe that a summary of the
discussion and the conclusions should be recorded in minutes, not just in
mailing list discussions or equivalent.
Actions to be taken as the result of the review should be left to the
judgment of the WG or IESG (and subject to the usual appeal mechanisms),
just as the decision would have been had the disclosure been timely.
If we do have a formal policy, what should it be?
I don't think the above is really a formal policy. I think making a
formal policy about the action to be taken would eventually result in a
case arising in which our policies compelled us to shoot ourselves in the
foot. As long as we are going to permit patented technologies, we are
going to need to make case-by-case decisions.
Should it be expressed in an RFC or an ION?
I think it should be in whatever document describes our "contribution"
procedures.
There is, however, also a fourth question.
Suppose we discovered that we were dealing with an organization that was
acting in bad faith. Suppose that person contributed a document, didn't
make the necessary disclosures, had the document approved as a standards,
and then filed the disclosure, claiming ignorance or ambiguity in the
rules about how soon the disclosure needed to be filed. As you said
above, we can't do much about that and governments are the right remedy.
But there is another piece of the puzzle, which is whether we want to
encourage that person to do it to us again. Some standards bodies that
have membership application processes and requirements kick people out for
this sort of thing. Should we consider bad behavior wrt disclosures
grounds for initiating actions against WG participation, and/or posting
rights, and/or I-D postings and authorship? Doing so would put us into a
complex legal environment if the bad behavior was denied by an individual
and a small circle of supporters, but perhaps we should be considering our
options in that area.
john
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