On Wed, Apr 11, 2007 at 01:54:53PM +0200, Brian E Carpenter wrote:
Well, if IPR owners don't actually care, why are they asking people to
send a postcard? It would seem to be an unnecessary administrative
burden for the IPR owners, yes?
My assumption is that they care if the party that fails to send
a postcard is one of their competitors. That's what the defensive
clauses in these licenses are all about, afaics.
So if there is a license which is not sublicensable, where if a
competitor wanted to field a product that required the patent license
--- I would rather doubt it if the competitor would want to ship
software or hardware where each individual end user had to send a
signed, notarized paper form to the IPR holder, and wait for a paper
response, before they would be allowed to use that product.
So that brings up an interesting question. Suppose an IPR holder
approached the IETF, with a claim that they were offerring an "royalty
free" license, but one which was not sublicensable and which contained
extremely onerous terms that applied to the individual end user.
(``After receiving an individually framed patent license, the end user
must jump up and down 17 times on one foot while chanting, "Hail
Billy, the Gates is with you, I promise to never use Open Document."'' :-)
Now suppose the IPR disclosure filed with the IETF didn't say anything
at all about any reasonable and nondiscriminatory licenses alternative
to said royalty free license.
At this point, we could end up with a situation where a company tries
to implement an IETF standard, realizes that the reliance on the
"royalty free" license is untenable, goes back to the IPR holder, only
discover that the only other alternatives are under terms which are
anything but RAND. So at the minimum, if we're not going to establish
requirements on royalty-free licenses being at least (a) perpetual,
and (b) automatically sub-licensable, (maybe those could be defined as
part of "reasonable" as it applies to RF licenses?) it would probably
be a good idea to require a statement by the IPR holders to state
their position on a RAND licensing as well. Otherwise, we could end
up in a situation where we discover after the fact that the only way
to implement the standard is via a completely unreasonable set of
"royalty-free" terms that make it completely useless for either an OSS
or commercial/propietary product, and with no statement about RAND
licensing terms.
Basically, there seems to be a loophole in our current wording which
could allow a bad actor who was determined to use patents as a
strategic weapon a way to lay trap which could seriously compromise
the deployment of an IETF standard.
- Ted
P.S. For the record, my personal list of reasonable RF license terms
include:
1) Perpetual (MUST)
2) Sub-licensable (MUST)
3) Restriction to essential claims necessary to implement a
standard (MAY)
4) Defensive clauses which revoke a patent license in the event
of patent litigation (MAY)
(Some OSS advocates will disagree with me on #3, and there I will
agree with Brian that if an OSS requires a universal patent license,
it's probably a bug in the OSS license --- and the ones who try to use
the OSD language about fields of endeavor are trying to apply
standards designed for copyright licenses, and they may not be
appropriate for patent licenses. But there will be plenty of room to
debate this particular issue --- but probably better to do it in the
IPR working group. :-)
---
Disclaimer: These are my own personal opinions and not necessarily the
opinions of my employer; I'm not important enough to affect the
pinions of my employer. :-)
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