Re: Shuffle those deck chairs!

Hi Eric,

I am afraid that your choice below won't mesh very well with why 
companies have software patents in the first place.  Software patents 
aren't free, and companies are fairly careful about maintaining their 
value.
So, I am wondering if there is a middle ground here somewhere...

Let's take an example:

Mighty Mouse, Inc. (MMI) is introducing an innovative new product 
called the CheeseGrater2000 (CG2K).  MMI engineers came up with a 
uniquely efficient way to use XML messages to control the real-time 
operation of the CG2K that allows the CG2K to be faster and more 
accurate than other cheese graters.  MMI has applied for a patent -- 
not just for using their special XML messaging technique for 
real-time control of cheese graters, but for using it to control any 
real-time device that contains a general CPU and a DSP (don't ask how 
a cheese grater uses a DSP... that's confidential! :-)).
Let's assume, for purposes of this exercise, that MMI's patent is 
legally valid and would stand up in court.  Let's also assume that 
there is no prior art.
MMI's primary intention is to protect the research investment that 
has allowed them to build faster and more accurate cheese graters 
than the competition.  Secondary goals are to use this patent for 
defensive value, and to see if the technology covered by this patent 
can be applied to differentiate other MMI products.
A bit later, the IETF forms a WG that comes up with a new XML-based 
management protocol for managing Wireless Access Points called 
WiReless Access Point Control (WRAPCTL).  Although the WG is unaware 
of this fact, the messages used in that protocol are in violation of 
MMI's patent(s).
Meanwhile, MMI has realized that their patented technique may allow 
for product differentiation in their IP Phone division 
(diversification is good!) and they have started talking to their IP 
Phone division about that possibility.
One of their IP phone engineers is active in the Transport area of 
the IETF, and has heard about the Cheese Grater Division's patent 
during internal meetings at MMI.  During a plenary presentation on 
the success of the WRAPCTL WG, the MMI engineer realizes that the 
Cheese Grater Division's patent might apply to the messages described 
in the WRAPCTL protocol if (and only if) that protocol were 
implemented on a real-time system containing a CPU and DSP (like a 
Wireless Access Point).  Being a conscientious IETF member and 
all-around good guy, the MMI engineer starts working with his legal 
department to draft an IPR disclosure including licensing terms.
MMI was entirely uninvolved in the creation of the WRAPCTL protocol, 
so they did not cause this conflict themselves.  They don't make (or 
plan to make) Wireless Access Points, and the success of the WRAPCTL 
protocol has no strategic value whatsoever for them.  However, being 
a nice company that doesn't want to damage the IETF, they would like 
to provide IPR terms that will allow people to implement the WRAPCTL 
protocol without paying any money to MMI.
However, in doing this, MMI wants to ensure two things:

(1) That they continue to protect their patent rights regarding the 
use of this technique for other purposes (such as cheese graters and 
IP phones).  So, they want to limit the royalty-free terms to 
implementation of the IETF's WRAPCTL protocol and/or to use on 
Wireless Access Points.  (I think that this would run amok of your 
proscription against "restricting the area of application", right?)
(2) That they maintain and enhance the defensive value of their 
patent, by making it clear that the royalty-free terms do not apply 
to anyone who sues them for violation of a different patent.  (If I 
understand correctly, the OSS community doesn't have a problem with 
this concept, as long as no paperwork is required?).
Are there any IPR terms that MMI could offer that would meet these 
goals while also allowing the WRAPCTL protocol to be implemented in 
OSS implementations?  If we could find that middle ground, I think it 
would be very valuable to the IETF and to the OSS community.
The sad truth, of course, is that (in the example above) it is far 
more likely that MMI would not determine that the WRAPCTL protocol 
violated their patents until longer after it had been standardized by 
the IETF and implemented in many commercial and OSS implementations. 
So, what would be do then?
Margaret

At 10:55 PM -0400 10/13/04, Eric S. Raymond wrote:
> Sam Hartman <hartmans(_at_)mit(_dot_)edu>:
> >  I think it would be wonderful if the free software community could
> >  come to a consensus about what their requirements are.
> That's not hard.  We need licensing conditions that don't require us
> to either pay royalties or sign legal papers, and which don't inhibit
> re-use of the code by restricting the area of application.
> --
>                 <a href="http://www.catb.org/~esr/";>Eric S. Raymond</a>
>
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