| And the flip side - we've moved an amazingly SMALL number of documents
| to Full Standard, and only when we *think* we *fully* understand
things.
That's the problem. Or it is with the IPR issues. It is determining
whether
we can make that final step (widespread deployment is what is required,
expecting full understanding of almost anything is naïve) that actally
decides whether or not the IPR rights holder is being reasonable or not.
Ten years ago, we were mostly concerned with the "silent patent holder"
problem. It is reasonably easy for a WG to make its own decision when the
existence of the patents and the licensing conditions are disclosed up front,
before the WG agrees on a solution. But the real problem occurs when the patent
holder "ambushes the standard". Products get developed and fielded, and then
the vendors or the users of these products get hit by an infringement lawsuit.
The current process was designed to minimize this risk, on the belief that if
an issue actually existed, it would surface during the early phase of testing,
i.e. before the standard would move from "proposed" to "draft". The rationale
was that there would not be much usage at that stage, and that if push came to
shove the WG could re-design the standard so as to not require licensing of a
hard-to-get patent. As KRE points out, the whole mechanism falls apart when
vendors field products based on a proposed standard, not to mention an internet
draft.
There are other issues. The first one is the imprecision of the disclosure
requirements. The current process does not exactly say who is required to
disclose the existence of intellectual property. According to some
interpretations, a working group chair whose organization holds patents
affecting a draft discussed in the working group is not required to disclose
these patents, if he or she does not contributes or otherwise participate in
the discussion of this specific draft.
A second issue is the interaction between the standardization process and
non-disclosure agreements. For example, an IETF participant may know that his
or her former employer has a patent claim on a technology considered for
standardization; in fact, I know case where the participant is in fact one of
the authors of the patent. Yet, the agreement signed when leaving an employer
typically prevents disclosure of such information. In another example, a vendor
may have to sign an NDA before learning that its product infringes on some
other organization's patent. This vendor is then legally prevented to signal
the existence of the patent claim to the IETF.
I would contend that, if we have one urgent problem to solve, it is to find a
way to ensure speedy disclosure of intellectual property issues that affect a
standard.
-- Christian Huitema