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Re: Forthcoming draft: draft-farrresnickel-ipr-sanctions

2012-01-26 18:56:26
Dear Hector,

I'm not quite sure that your understanding of the US patent law and MPEP
rules is inline with most patent practitioners, or that your post
otherwise make all that much sense.

First, the thing you are talking about are known as "Markush Claim".  From
MPEP, 803.02: "A Markush-type claim recites alternatives in a format such
as "selected from the group consisting of A, B and C."  It deals with the
examiners reaction to situations where there are too many group members
(typically much more than three, A, B, C; those group members are not
sufficiently closely related to deal with them as a group, and where the
examiner would face a burden to examine the the claim because A, B, and C,
each in combination with the rest of the claim, would require a very
different Prior Art search for each A, B, and C.

Second, based on my very quick scanning over the patent application in
question here, your whole discussion does not appear to apply as the
application contains not a single Markush claim.

Third, the developments in patent law (more precisely here: US examination
rules, MPEP, re Markush claims) are US local.  Surely, you don't want to
tie the operating procedures of an international organization like the
IETF to a mere rule change in one legislation.
 
Fourth, your analysis below of what was/is patentable does not seem
correct.  AFAIK, nothing earth-shattering has changed with respect to
patentability of novel combinations of known subject matter.  Markush
claims are about a certain way to express selections, but there are many
other ways.  For example, I believe in bioscience it is now common
practice to avoid Markush claims and rather spell out all combinations in
dependent claims, and just absorb the excess claim fees.  (I have seen
biotech patents with more than 500 claims).

Fifth, and finally, your "idea of a sanction" would result in a major
policy change, essentially disallowing any IETF work moving forward that
is not "100% PUBLIC/FREE/OPEN".  This may or may not be a good idea, but
it's not the discussion we have here.

Best regards,
Stephan
 


On 1.26.2012 16:07 , "Hector" <sant9442(_at_)gmail(_dot_)com> wrote:

Pete Resnick wrote:
Just a heads-up:

Adrian Farrel and I started work on a draft to focus discussion on
sanctions that could be applied to violators of the IETF's IPR policy.
Because of incidents like the present one, we've each been asked by WG
chairs and others what can be done in response to such violations.
We've 
centered our draft around sanctions that are available under current
IETF procedures, not introducing new ones. The draft  should be
available in the I-D repository soon. We think this could usefully
become an RFC and we would welcome discussion.

Thanks,

pr

Personally, this may be addressing the wrong problem.

However, I do think that a document or change in existing documents
has merit to strongly focus on the fundamental idea that the
integration of IETF RFC published technology is not subject to any
kind of IPR restriction now or in the future.

Thats really the key problem here and its 100% related to the changes
to the patent laws and how that has negatively affected the IETF IPR
model which is old dated.

To the layman, experts call it the new timeline. The problem is the
simplistic ideas that integrating existing known parts where never
patentability prior to 1996.  This was relaxed in 1996 with whats
called "Software Methods" or "Business Methods."  But what really
changed is the the due diligence was no longer the patent examiner to
perform the full Markus Analysis. He looked for the obvious but much
of the responsibility was expected to be done by the applicant.

This is important because it hits home with all the long time systems,
especially the all the systems out there that use some and/or these
IETF parts and there is no reason to not expect they could use other
IETF parts in the future (i.e. SIP).

From the patent standpoint:

   pre-1996  :  SIP+SIEVE patent WOULD be denied. The PATENT is on
the new METHOD
                unique in the SIP+SIEVE integration, not the
integration itself.
                And a PHYSICAL DEMO must exist. The IDEA itself is
not enough.

   1996-~2009:  SIP+SIEVE patent MAY be denied.  The patent MAY
includes the
                integration and encompasses all METHODS of integration.

   ~2009+    :  Further relaxation, SIP+SIEVE patent WILL NOT be denied
                Any prior art disputes must be added to patent.  The
RIGHT
                to challenge is not denied but its 100% the burden of
others.

IOW, now this the patent was filed for SIP+SIEVE, the impact is ALL
existing systems, based on the 2009+ laws, CAN NOT add SIP to their
SMTP/IMAP system using SIEVE.

Thats the problem Pete.  In short, I can no longer even consider the
idea of using SIP with SIEVE any more even if my integrated method is
unique.

The IETF needs to begin to address this serious problem of people
using IETF technology parts in some integrated method and makes a
"Business Method" patent claim.

I guess, if there is any "sanctions" it would be a simple idea that
once a discovery of a claim is made purely based in the integration of
IETF parts with nothing novel in the claim, then the I-D and/or RPC
would be PULLED and no longer be a IETF document for consideration
without a 100% PUBLIC/FREE/OPEN usage declaration.

Its a tough issue, but I think it becomes simply to deal with once the
strong idea that mere integration of IETF parts is not patentable
material.

--
HLS
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