On Tue, 5 Oct 2004, Harald Tveit Alvestrand wrote:
Since I'm not at my best in being clear this week......
I agree very much with ESR that current US IPR practices are a huge
problem, and that the IETF needs to deal with these issues in a rational
fashion.
<LPF President hat on>
Its not US IPR practices that are a problem, comparatively. It previously
had a 17 year limit, which has now been extended to 21 years, same as
Europe & elsewhere. Actually, the practices in nearly the entire developed
and developing world are worse. Except for GATT changes, the US is the
still most reasonable at present, and that's a sorry state, too, but still
better than elsewhere. The US, unlike most of the rest of the world, has a
first-to-invent rule, so that prior art can (for now) invalidate a
patent. The rest of the world (or nearly so) has a first-to-file rule,
which means the first one to dash to the patent office gets the prize.
Clearly, those large companies that can pay to have lawyers with offices
across the street will have an advantage over everyone else.
The bad news is that the US is obligated by the GATT Treaty to move to a
first=to-file rule. It has already moved from 17 year terms to 21 year
terms as required by GATT.
Unlike ESR, I think that it's possible to find such a rational fashion
within the formal structure of the present IETF IPR rules - that we have a
number of patents on IETF-specified technology that do not create any
problem for implementors, and that we need to build on and extend those
examples into true "best current practices" (the OTHER meaning of the term,
not "IETF rules").
I don't think the IETF can rid the commons of patents.
I do think we (the community) have a chance at finding ways to render those
patents that crop up in the commons harmless.
This is quite wrong. Indeed, its not the bad patents that scare me. They
cost money and harm a relatively few companies, and enrich some lawyers.
Rather, its the truly novel patents that cause the most damage. They have
the potential to cripple entire subject areas. Being truly novel, they
won't be reversed, and will stand. And being novel, they may be hard or
impossible to overlap and cross-license.
--Dean
<LPF President hat off>
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