--On Thursday, January 26, 2012 10:08 -0600 Pete Resnick
<presnick(_at_)qualcomm(_dot_)com> wrote:
As I've mentioned to others, since I'm one of the people who
will have to judge the consensus on this question, my comments
will remain strictly based on the facts of the events as I
know them and on the relevant IETF procedures. It is up to the
IETF community to decide on what the appropriate course of
action shall be. That said, I have some comments and questions:
On 1/26/12 3:31 AM, John C Klensin wrote:
It seems to me that a key question here is whether the
original author's decision to not disclose was made in
violation of company policy or whether the sequence of
posting the I-D, getting the document through the WG and Last
Call, and then posting the disclosure is a matter of company
policy.
We were told by the other company employees who facilitated
the disclosures, at the time of the disclosures, that this was
strictly an individual's failure to comply with the IETF IPR
Policy, that the author in question claims not to have
understood the IETF IPR Policy, and that the company proceeded
to make these disclosures as soon as it discovered that this
IPR existed. I have no information to contradict that claim.
Excellent. I had hoped that was the situation. It obviously
makes things much easier (and some of my earlier comments
irrelevant). With all the effort we go to ("Note Well" and
otherwise) to be sure that people are informed about the policy,
I have trouble generating sympathy for someone who says "didn't
underatand", but that is another matter (and perhaps just my
problem).
Consequently, I believe that at least the following should be
required:
(1) Revision of the IPR statement so it identifies the
responsible individual by name, department, and title. I do
not believe that the rather anonymous "Director of Licensing"
is compliant with the intent of the IPR disclosure rules. I
will leave it to the lawyers to advise on whether a document
issued without the name (not just title) of a responsible
individual would even be held to be valid in the various
jurisdictions in which the patent might be recognized.
Are you asking that the IPR statements be updated with the
name, department, and title of the "Director of Licensing", or
that of the author of the documents and patents in question?
The former.
It seems to me that the former is a procedural question that
is separate from the disposition of these particular
documents, and seems like a reasonable requirement for any IPR
disclosure.
That is correct. I believe I suggested in a later note that
this is an area to which it would be good if the Trust paid some
attention and advised the Secretariat and others accordingly.
(2) A request to the company involved for someone who can
formally speak for that company to publicly clarify that this
sequence of behavior occurred in violation of company policy.
If there are internal rewards to individuals for filing and/or
being awarded patents, I assume that a decision that the
actions violate company policy would cause such awards to be
withheld in this case, even though the IETF would have no way
to verify whether or not that occurred.
The IETF Chair has in the past sent messages to companies to
inquire about their handling of IPR disclosures, so I imagine
such a message could be sent if the IETF community desires it.
That was my assumption. On the other hand, if it is already
clear that this was either a misunderstanding, a violation of
company policy, or both, it might not be necessary.
(3) A request to the company involved to remove the
reciprocity clause from the license stated in the disclosure
statement. As a show of good faith, they should agree to
derive no benefit from the patent other than what praise
accrues from having it awarded.
I'll ask to bring this topic up with the IETF attorney. I am
pretty sure we can *ask* that they do this as a show of good
faith. I am also pretty certain that we can't negotiate the
terms of a license agreement.
I was only suggesting asking. If they say "no", which they
obviously have the right to do, it is, as others have pointed
out, the WG's problem to consider what that is an issue. If the
WG is indifferent on the issue, it seems to me that the relevant
AD has a problem, but that problem is _not_ bound to the
disclosure issue.
(4) Removal of the offending individual from the list of
authors to the acknowledgments with text similar to that
suggested by Adrian. Unless the company involved is willing
to provide the clarification suggested in (2) above, and
possibly the license modification suggested in (3) above, all
names of authors associated with that company should be
removed to the acknowledgements and the company affiliation
explicitly identified there. In either case, this should be
viewed as a response to a policy violation and not entangled
with any more general discussion of listed authors on I-Ds or
RFCs.
Of course, removal of individual document editors is well
within the rights and responsibilities of the chairs, so if
this is the consensus of the IETF, I am sure it can be done.
That was my assumption.
I
would like you to elaborate on the issue of the authors who
are employees of the company but *not* the author of the
patent in question. Are you saying that their names should be
removed because, as co-workers of the author in question, they
ought to have known (or been more diligent in confirming) that
the IPR existed and therefore should be sanctioned for failing
to comply with the IPR rules, or are you saying that this is a
sanction that should be levied against the company and
therefore its employees?
If the other authors from that company have already told us that
they were not aware of the patent application until very late in
the process and that they moved diligently toward getting an
appropriate disclosure filed as soon as they did find out, my
suggestion is moot.
I was concerned about the (thoroughly unlikely in this case)
possibility that the other authors from that company were
personally aware of the IPR but had been, e.g., advised that
they were not to make the disclosure because someone else would
take responsibility for it.
I will note that RFC 3979 does not
put a responsibility on individual participants to go discover
IPR that may exist, nor does it make any overt requirements of
companies since it applies only to the individual participants
in the IETF (caveat the recognitions in sections 6.6 and 7).
Understood. My separate concerns about the implications of that
policy should a company ever choose to deliberately hide
relevant IPR from IETF participants do not apply to this case
and should not be part of the discussion.
(5) Unless the clarification suggested in (2) can be provided,
each IETF participant who is associated with the relevant
company and who is in an IETF-related leadership or
decision-making position (WG Chairs; Editors; IESG, IAB, IAOC,
Nomcom, members; etc.) should be asked to make a conscientious
personal review as to whether this type of action sufficiently
compromises his or her position that resignation or some other
action would be appropriate and, as appropriate, to review
IETF policies with whatever management chains are relevant.
I am _not_ suggesting that anyone be asked to resign, only
that they engage in careful consideration of the issues and
their implications.
I believe this last one is outside of the scope of the
decisions the IETF has to take regarding the disposition of
the particular documents. It may indeed be reasonable for
every IETF participant to review the policies and actions of
their own employer as they relate to IETF participation and
make a conscientious decision whether they can continue to
participate in the IETF, whatever their role, given those
policies and procedures.
Complete agreement. I would, for the record, make much the same
suggestion about behavior in other situations that appeared to
push the boundaries of codes of professional ethics of the
professional societies of which many of us are members. Like
the IETF's IPR rules, those provisions are intended to be taken
seriously rather than as decoration that can be safely ignored.
The issue is an individual one, not an IETF one, and the current
issue is relevant only insofar as it should encourage all of us
--not just those involved in this document-- to take our various
personal and professional obligations seriously and to consider
the implications of circumstances in which various of them might
come into conflict.
best,
john
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