Internet DRAFT - draft-hallambaker-ipr-patent-harmonization

draft-hallambaker-ipr-patent-harmonization






Internet Engineering Task Force                          P. Hallam-Baker
Internet-Draft                                              VeriSign Inc
Intended status: Informational                           D. Hallam-Baker
Expires: May 7, 2008                           World Wide Web Consortium
                                                        November 4, 2007


                 IETF Patent Policy: A Quantum Approach
             draft-hallambaker-ipr-patent-harmonization-00

Status of this Memo

   By submitting this Internet-Draft, each author represents that any
   applicable patent or other IPR claims of which he or she is aware
   have been or will be disclosed, and any of which he or she becomes
   aware will be disclosed, in accordance with Section 6 of BCP 79.

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   This Internet-Draft will expire on May 7, 2008.

Copyright Notice

   Copyright (C) The IETF Trust (2007).

Abstract

   Considerations for IETF patent policy are considered and proposals
   made for reform.  The particular objective of these proposals is to
   reduce the amount of time spent in unproductive discussion of IPR
   issues and to allow Working Groups to provide Patent Rights Holders
   with clearly defined criteria that must be met in order for their
   technology to be accepted.




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Table of Contents

   1.  Introduction . . . . . . . . . . . . . . . . . . . . . . . . .  4
     1.1.  Requirements Language  . . . . . . . . . . . . . . . . . .  4
     1.2.  Definitions  . . . . . . . . . . . . . . . . . . . . . . .  4
   2.  Stakeholder Concerns . . . . . . . . . . . . . . . . . . . . .  5
     2.1.  Patent Rights Holders  . . . . . . . . . . . . . . . . . .  5
       2.1.1.  License Revenue  . . . . . . . . . . . . . . . . . . .  5
       2.1.2.  Monopoly Rights  . . . . . . . . . . . . . . . . . . .  5
       2.1.3.  Defensive Use  . . . . . . . . . . . . . . . . . . . .  5
       2.1.4.  Protecting Rights  . . . . . . . . . . . . . . . . . .  5
       2.1.5.  Attribution  . . . . . . . . . . . . . . . . . . . . .  6
       2.1.6.  Adoption . . . . . . . . . . . . . . . . . . . . . . .  6
     2.2.  Implementors . . . . . . . . . . . . . . . . . . . . . . .  6
       2.2.1.  Litigation Risk  . . . . . . . . . . . . . . . . . . .  6
       2.2.2.  Damages Risk . . . . . . . . . . . . . . . . . . . . .  6
       2.2.3.  License Cost . . . . . . . . . . . . . . . . . . . . .  6
       2.2.4.  Encumberance . . . . . . . . . . . . . . . . . . . . .  7
       2.2.5.  Adoption . . . . . . . . . . . . . . . . . . . . . . .  7
       2.2.6.  Patent Rights Holders  . . . . . . . . . . . . . . . .  7
     2.3.  Users  . . . . . . . . . . . . . . . . . . . . . . . . . .  8
       2.3.1.  Indeminity . . . . . . . . . . . . . . . . . . . . . .  8
   3.  Patents in the Standards Process . . . . . . . . . . . . . . .  8
     3.1.  Issues Arising from Current IETF Practice  . . . . . . . .  8
       3.1.1.  Royalty Terms  . . . . . . . . . . . . . . . . . . . .  8
       3.1.2.  Time Taken for Discussion  . . . . . . . . . . . . . .  8
       3.1.3.  Weak Negotiating Position  . . . . . . . . . . . . . .  9
         3.1.3.1.  No Decision Maker  . . . . . . . . . . . . . . . .  9
         3.1.3.2.  Unequal Precedent  . . . . . . . . . . . . . . . .  9
       3.1.4.  Unenforceable Patent Claims  . . . . . . . . . . . . . 10
       3.1.5.  Uncertainty  . . . . . . . . . . . . . . . . . . . . . 10
       3.1.6.  Access, not Licenses . . . . . . . . . . . . . . . . . 10
       3.1.7.  Non Participant Claims . . . . . . . . . . . . . . . . 11
     3.2.  Other Standards Bodies . . . . . . . . . . . . . . . . . . 11
       3.2.1.  World Wide Web Consortium  . . . . . . . . . . . . . . 11
       3.2.2.  OASIS  . . . . . . . . . . . . . . . . . . . . . . . . 11
       3.2.3.  Other  . . . . . . . . . . . . . . . . . . . . . . . . 11
       3.2.4.  Stakeholder Concerns in IETF Process . . . . . . . . . 11
         3.2.4.1.  Disclosure . . . . . . . . . . . . . . . . . . . . 11
         3.2.4.2.  Predicatability  . . . . . . . . . . . . . . . . . 12
         3.2.4.3.  Fairness . . . . . . . . . . . . . . . . . . . . . 12
   4.  Proposals  . . . . . . . . . . . . . . . . . . . . . . . . . . 12
     4.1.  Increased NOTE WELL visibility . . . . . . . . . . . . . . 12
     4.2.  Specify IPR terms in chartering discussion . . . . . . . . 12
     4.3.  Reuse already existing IPR Policy terms  . . . . . . . . . 13
     4.4.  Liase with in Discussion in Appropriate Venues . . . . . . 13
   5.  Acknowledgements . . . . . . . . . . . . . . . . . . . . . . . 13
   6.  IANA Considerations  . . . . . . . . . . . . . . . . . . . . . 14



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   7.  Security Considerations  . . . . . . . . . . . . . . . . . . . 14
   8.  Normative References . . . . . . . . . . . . . . . . . . . . . 14
   Authors' Addresses . . . . . . . . . . . . . . . . . . . . . . . . 14
   Intellectual Property and Copyright Statements . . . . . . . . . . 15















































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1.  Introduction

1.1.  Requirements Language

   The key words "MUST", "MUST NOT", "REQUIRED", "SHALL", "SHALL NOT",
   "SHOULD", "SHOULD NOT", "RECOMMENDED", "MAY", and "OPTIONAL" in this
   document are to be interpreted as described in RFC 2119 [RFC2119].

1.2.  Definitions

   The following defined terms are used:

   Open Source  a set of principles and practices intended to promote
      access to the design and production of goods and knowledge through
      full disclosure of all relevant design materials.

   Open Source Implementation  a software or hardware implementation
      that is licensed on terms compatible with Open Source principles.

   Zero Cost Open Source Implementation  An Open Source implementation
      that is provided at no charge to any party and which may be
      extended or adapted without restriction.

   Patent  a set of exclusive rights granted by a state to a patentee
      for a fixed period of time in exchange for a disclosure of an
      invention.

   Patent Access  terms that allows a party to practice the invention
      covered by a patent without risk of a lawsuit.

   Patent License  a contract granting a Patent Access.

   RAND  Reasonable and Non Discriminatory terms

   RANDZ  Reasonable, Non Discriminatory and Zero cost terms

   Royalty RAND  Reasonable and Non Discriminatory terms in which a
      royalty fee is required for some or all uses..

   Reciprocal Rights  rights granted by one party to another on the
      condition that the recipient grant terms that are equally
      favorable to the granting party.

   Certain definitions are adapted from text found in Wikipedia.







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2.  Stakeholder Concerns

2.1.  Patent Rights Holders

2.1.1.  License Revenue

   A Patent Rights Holder may seek revenue in the form of license fees.
   The terms offered for these rights may or may not be RAND.

   In many instances a Patent Rights Holder seeking to obtain license
   revenue will offer RANDZ terms for certain types of use (e.g. non-
   commercial, educational) or certain uses of the patent (e.g. allow
   free use of rights to decode content but charge fees for encoders).
   Such terms are properly regarded as a business model rather than Zero
   Cost terms.

2.1.2.  Monopoly Rights

   A Patent Rights Holder may seek to use patent rights to establish or
   extend a dominant or otherwised advantageous market position.  As
   with a revenue exploitation model the Patent Rights Holder may offer
   liberal terms in some areas while protecting others.

2.1.3.  Defensive Use

   As issue of Patent grants has increased Implementors and Users,
   particularly those with deep pockets have become increasingly
   concerned about their exposure to litigation and damages risks.

   Defensive patent applications provide a degree of mitigation for this
   risk.

   Establish Prior Art  A defensive patent application establishes prior
      art for the invention(s) claimed.  This MAY pre-empt subsequent
      grant of a patent for the same claims by another party or allow
      for a successful defense should a subequent patent be issued.
      This is not certain however.

   Obtain Reciprocal Access  A defensive patent applicatiopn MAY be used
      to obtain reciprocal rights from other patent rights holders.

2.1.4.  Protecting Rights

   A Patent Rights Holder may be subeject to limitations of their rights
   or lose them entirely for certain specific types of inequiable
   conduct.  This has occurred in the US courts for failure to disclose
   the existence of rights to an invention when the Patent Rights Holder
   was under a specific obligation to do so.



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2.1.5.  Attribution

   A Patent Rights Holder that has invested substantial resources in
   developing an invention may desire credit for doing so.

2.1.6.  Adoption

   The value of a communication protocol is dependent on adoption.  As
   Nicholas Negroponte observed, the utility of the first fax machine
   was nil until the second one was produce and has climbed steadily as
   the number of faxes has increased.

   The need for widespread adoption is the reason that standards play an
   unusually critical role in the development of communication
   technologies.  Without standardization of features such as thread
   pitch, nuts and bolts would be considerably more expensive.  Without
   standardization a communications protocol is no use whatsoever.

   Without adoption, the value of a typical communications invention is
   zero.  It is thus in the interests of Patent Rights Holders to seek
   adoption of the inventions they have rights to by promoting them in
   standards process.

2.2.  Implementors

2.2.1.  Litigation Risk

   The cost of defending a patent infringement lawsuit can be enormous.

   Litigation risk is a particular concern in the US where costs cannot
   be recovered from a losing plaintif and cases routinely cost
   defendants with 'deep pockets' $2 million or more.

2.2.2.  Damages Risk

   Damages in patent lawsuits can be very high.  Several recent awards
   have exceeded a hundred million dollars.

   US law allows for damages to be trebled in cases of willful
   infringement.  As a result some companies have policies which
   prohibit engineers fro engaging in any patent searches or other
   activities that might bring patents to their notice and thus provide
   grounds for a treble damages claim.

2.2.3.  License Cost

   The cost of patent licenses is usually paid by implementors.
   Although these costs will subsequently be passed onto users certain



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   types of implementors may be unable to meet these costs.  In addition
   to providers of Zero Cost Implementations, smaller implementors may
   be unable to afford minimum license fees or meet other licensing
   requirements.

2.2.4.  Encumberance

   Once a patent license is accepted, the licensee is bound by the terms
   of the license.  These terms may continue even after the original
   patent term expires or the patent is found to be invalid.

   A royalty-free license may still be regarded as an encumberance by an
   implementor.  For example a royalty-free license may require the
   licensee to use a particular technology (e.g. programming language)
   or support particular features (e.g. direct access to a particular
   online store) that the implementor would not otherwise accept.

   In particular 'royalty-free' license terms that require the
   implementor to surrender patent rights to unrelated technologies or
   to provide the implementation at zero cost are generally considered
   an encumberance by the affected parties.

   Sublicensing terms have proved problematic in this respect.
   Commercial providers of middleware products have objected to license
   terms which would require their customers to obtain a royalty-free
   license from a Patent Rights Holder as requiring them to reveal their
   customer list to a competitor.  Sublicensing is also a concern with
   certain open source licenses as a patent license obtained by the
   developer may not transfer to another developer that modifies the
   code.

2.2.5.  Adoption

   Adoption is also a concern for Implementors.  Implementors will not
   adopt a technology unless they beleive that they can access all
   necessary and enforceable patents on acceptable terms.

2.2.6.  Patent Rights Holders

   Some Implementors are also Patent Rights Holders.  Their interests in
   one role may conflict with those in the other.  In some cases this
   conflict may lead to proloinged indecision and thus inaction which in
   itself impedes the standards process.

   A particular concern raised by some Implementors/Patent Rights
   Holders is that the reciprocal rights clause of a Patent License may
   not be enforceable against a party that obtains a patent grant
   indirectly through a sublicense.  While it has been argued that such



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   reciprocal rights are likely to be found enforceable by a court, in
   the absence of binding precedent this argument does little to
   convince a party concerned about litigation risk.

2.3.  Users

   A lawsuit for patent infringement may in certain circumstances be
   brought against the user of an infringing article.  Users with deep
   pockets may thus be exposed to the same litigation and damages risks
   as developers and all users can expect that licensing costs paid by
   implementors will be passed onto them.

   In some recent cases a plaintif who has been successful in a patent
   infringement lawsuit against an implementor has subsequently brought
   suit against users, effectivly claiming double damages for the same
   infringement.

2.3.1.  Indeminity

   Users may seek an indemnity against these risks from a third party,
   typically, but not necessarily, the implementor.


3.  Patents in the Standards Process

3.1.  Issues Arising from Current IETF Practice

3.1.1.  Royalty Terms

   Current IETF practice is that access to all essential claims
   necessary to implement a specification MUST be available to all
   parties on RAND terms.  The IETF does not require Zero Cost access to
   be available.

   While it is clear that there is no IETF consensus to change this
   policy, there is an even stronger preference for choosing technology
   available on RANDZ terms unless an encumbered technology overs
   exceptionally strong advantages.

3.1.2.  Time Taken for Discussion

   The most frequent complaint made of the IETF patent policy is the
   amount of time spent dicussing it.  Extended discussion of patent
   access issues is particularly problematic when it occurs during
   Working Group or IETF last call at a point where the Working Group
   has invested considerable time and effort in developing the
   specification.




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   At present each IETF Working Group is responsible for deciding its
   own IPR policy within the constraint of meeting the IETF RAND
   requirments.  While this allows WGs great flexibility in chosing
   their IPR criteria it leads to a great deal of unnecessarily
   repetative discussion at both the Working Group and IETF level.

   A particular problem here is the fact that most IETF participants are
   engineers.  Almost none are qualified lawyers.  As a result
   discussions tend to revolve around the twin poles of ideological
   commitments and the concerns of those who have in the past become
   involuntary participants in patent litigation.

3.1.3.  Weak Negotiating Position

   Allowing Working Groups to negotiate IPR terms with Patent Rights
   Holders directly is unsatisfactory because they are placed in a weak
   negotiating position.

3.1.3.1.  No Decision Maker

   Negotiating with a Working Group as a whole is entirely
   unsatisfactory for the Patent Rights Holder as no party in the
   Working Group has decision making power, either for the Working Group
   itself or the IETF as a whole.  Any concession made by one member of
   the Working Group can be repudiated by the group as a whole and even
   if the Working Group comes to agreement with the Patent Rights Holder
   this agreement may be repudiated at the IETF level

   The result is a negotiating posture similar to Axelrod's Prisoner's
   Dilema in which the rules of the game cause the parties to choose an
   outcome that is suboptimal for all concerned.

3.1.3.2.  Unequal Precedent

   Any concession made by a Patent Rights Holder to one Working Group
   becomes an unequal precedent.  Having revealled their bargaining
   position, the Patent Rights Holder knows that in the future it will
   be expected to provide terms that are at least as favorable to any
   other Working Group.  The precedent established is only one way
   however, the Patent Rights Holder has no assurance that its
   competitors will be required to provide equally favorable terms in
   the same circumstance.

   Unequal precedence encourages Patents Rights Holders to offer the
   least favorable terms that are likely to be acceptable to the Working
   Group and is thus counter to the spirit of mutuality on which the
   IETF is based.




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3.1.4.  Unenforceable Patent Claims

   The mere assertion of a patent claim does not by itself mean that the
   claim is valid or enforceable.  Patent applications are particularly
   problematic in this respect as nobody knows if the application will
   be granted.

   Bad faith assertions of patent claims are far from unknown.  The most
   famous example being perhaps the notorious Selden 'automobile patent'
   which prevented production of low cost volume automobiles until the
   patent was disqualified in 1911 at the conclusion of a case brought
   against Henry Ford.

   A bad faith patent claim might be raised in a standards process in
   the hope of receiving unjust royalty payments or to influence the
   process itself.  A rule against inclusion of any technology against
   which a patent claim has been asserted would require the IETF to
   either examine the validity of the patent claim or allow the Patent
   Rights Holder to exercise a veto.

3.1.5.  Uncertainty

   Uncertainty imposes costs on all legitimate stakeholders.  A Patent
   Rights Holder seeking to fairly obtain royalties for use of their
   technology has little incentive to invest in engagement in a
   standards process if it is uncertain that Royalty RAND terms will be
   acceptable.  Equally an implementor is likely to object if having
   engaged in a standards process under the expectation that the royalty
   terms will be RANDZ and find that this is not the case at a late
   stage.

   The disadvantage created by uncertainty might be used to advantage by
   a bad faith Patent Rights Holder, encouraging development of the
   specification to proceed on the expectation that RANDZ terms will be
   available without the intention of ever doing so.  This is not as
   great a concern in standards bodies where implementation and
   deployment follow agreement of the specification.  In the IETF and
   other Internet standards bodies deployment and use is considered an
   essential criterion for recognition of a standard.

3.1.6.  Access, not Licenses

   Conventional consideration of patent policy has centered on patent
   license terms, this despite the fact that few parties have in fact
   obtained licenses when offered.

   In most cases the interest of the implementor is not to obtain a
   patent license, it is to obtain an assurance that a lawsuit will not



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   be brought for infringement.  Nor is it likely to be in the interests
   of a Patent Rights Holder to litigate for infringement of a RANDZ
   patent license except as a countersuit to an infringement case
   brought by the alleged infringer.

   The objectives of the parties is therefore to grant and obtain Patent
   Access as opposed to a Patent License.  In the Microsoft Open
   Specification Promise this takes the form of an irrevocable promise
   not to assert any Microsoft Necessary Claims in connection with an
   implementation that conforms to a covered specification provided that
   no similar claims are made against Microsoft.  This approach meets
   Microsoft's goal of ensuring the enforcability of the Reciprocal
   Rights clause in the patent license while avoiding the need for any
   party to actually obtain a license.

3.1.7.  Non Participant Claims

   Any changes made to the IETF patent policy must bear in mind the fact
   that it is only binding on IETF participants.  If the policy is
   changed in ways that Patent Rights Holders who are also Implementors
   consider to be too onerous, they may cease participating.

   Patent claims by non-participants have in practice proved far more
   problematic than those brought by participants.  A Patent Rights
   Holder who is also an Implementor has to consider both the

3.2.  Other Standards Bodies

3.2.1.  World Wide Web Consortium

3.2.2.  OASIS

3.2.3.  Other

   Some standards bodies begin all proceedings, including face to face
   meetings and conference calls with a formal recitation of the IPR
   (and frequently anti-trust) requirements.

3.2.4.  Stakeholder Concerns in IETF Process

3.2.4.1.  Disclosure

   All parties should have equal understanding of the consequences of a
   decision.  Effective disclosure of IPR claims is thus essential.







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3.2.4.2.  Predicatability

   When a proposal is made the parties should be able to predict the
   likely response.

3.2.4.3.  Fairness

   No party should be able to benefit from unfair practices such as
   concealling the existence of IPR or bad-faith offers of Patent Access
   on deliberately ambiguous terms.


4.  Proposals

4.1.  Increased NOTE WELL visibility

   Display of NOTE WELL advice should be more prominent than is
   currently the case.  In particular ackinowledgement of NOTE WELL
   notification should become a required element of subscription to all
   IETF mailing lists, including lists discussing formation of BOFs.

4.2.  Specify IPR terms in chartering discussion

   The charter of a Working Group SHOULD specify the IPR terms which
   proposals MUST meet in order to be accepted as Working Group work
   items.  In cases where the IPR situation is unclear the chater SHOULD
   specify clarification of the IPR terms as a work item.

   While a Working Group does not always meet the objectives set out in
   its charter, the objectives should always be understood at the
   outset.  It is exceptionally unlikely that a Working Group that is
   founded with the purpose of developing a RANDZ protocol is going to
   subsequently choose a Royalty RAND alternative.

   In some cases a Working Group will be chartered to create a protocol
   for a technology that is subsequently discovered to be subject to
   credible Patent claims.  While this situation is unavoidable it does
   not have to necessarily lead to the collapse of the Working Group as
   has happened in the past.  Stating the criteria for acceptable IPR
   terms at the outset puts the Patent Rights Holder on notice of the
   criteria they must meet for acceptance and provides them with an
   assurance that the terms will be accepted if offered.

   The purpose of a Working Group charter is to avoid unnecessary and
   repetative discussions that are unproductive.  Working Groups are
   routinely chartered to rule out of scope discussions that would
   duplicate the work of other Working Groups or have been found to be
   unproductive in the past.  These include definitions of SPAM,



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   development of PKIs in groups not charterted for that express
   purpose, development of new cryptographic algorithms and the like.
   The authors of Working Group Charters should be encouraged to add
   discussion of IPR terms to this list.

4.3.  Reuse already existing IPR Policy terms

   Working Groups should be encouraged to require compliance with IPR
   policy that has already been developed rather than develop new IPR
   terms within IETF process.  In particular requiring compliance with
   the existing W3C policy requirements is recommended.

   Reuse of existing IPR terms reduces the work that Implementors and
   must perform to decide if the terms are acceptable and for Patent
   Rights Holders to arrive at acceptable terms.

   The less decision time required by the lawyers, the greater the
   chance of a satisfactory result.  Standardized terms transform a
   legal question to be decided by the legal department into a business
   question to be decided by the business unit.

   Standardized terms have the further benefit of being more predictable
   if the parties do end up in a potential litigation situation.
   Standardized terms make it more likely that an applicable precedent
   can be found.  While precedent is not binding in all legal traditions
   it is still informative in jurisdictions where it is not binding.

4.4.  Liase with in Discussion in Appropriate Venues

   Development of IPR policy terms is not core to the mission of the
   IETF or any othe Internet Standards body.  If extended discussion of
   such issues is required this should be persued in a venue that has
   the appropriate domain expertise.

   In addition to developing the policy requirements themselves such a
   forum might assist in the development of mutually acceptable support
   materials such as standard Patent Access terms, standard Patent
   License contracts, NOTE WELL and disclosure agreements for pre-
   standards activity and the like.

   Standardization of the legal layer of the Internet becomes
   increasingly critical as the Internet becomes a social
   infrastructure.


5.  Acknowledgements





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6.  IANA Considerations

   This draft does not require any action by IANA.


7.  Security Considerations

   IPR management rasies critical security issues for all the
   stakeholders involved.  IPR is an asset which stakeholders must
   carefully consider in deciding to grant access


8.  Normative References

   [RFC2119]  Bradner, S., "Key words for use in RFCs to Indicate
              Requirement Levels", BCP 14, RFC 2119, March 1997.

   [RFC2560]  Myers, M., Ankney, R., Malpani, A., Galperin, S., and C.
              Adams, "X.509 Internet Public Key Infrastructure Online
              Certificate Status Protocol - OCSP", RFC 2560, June 1999.


Authors' Addresses

   Phillip Hallam-Baker
   VeriSign Inc

   Email: pbaker@verisign.com


   Daniel Weitzner
   World Wide Web Consortium

   Email: djweitzner@w3.org

















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Full Copyright Statement

   Copyright (C) The IETF Trust (2007).

   This document is subject to the rights, licenses and restrictions
   contained in BCP 78, and except as set forth therein, the authors
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