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RE: A priori IPR choices [Re: Third LastCall:draft-housley-tls-authz-extns]

2007-10-23 12:16:07
The objective here is to constrain the amount of unproductive argument by 
limiting the number of possible end states.
 
In particular I would like to tip the scales so that if we have proposals A and 
B where A is unemcumbered but B is not that proposal B has to demonstrate a 
remarkably higher value in order to be chosen over A. 
 
Now imagine that proposal B is slightly better but not so overwhelmingly so 
that it is going to win if it continues to be encumbered. I want the engineer 
responsible to be able to go to their management with a clear value 
proposition: that the licensing fees will be $0 in either case, that in order 
to benefit from the advantages of B the IPR owner is going to have to execute 
an agreement that satisfies these specific criteria, and that these criteria 
have proved acceptable to the lawyers at major patent conscious companies such 
as [...], that this will not blunt the defensive use of the patents and that 
any other IPR holders will be required to provide access to their technology on 
terms that are at least as favorable.
 
The more wiggle room is allowed, the less likely it is that the intended result 
will be achieved. In particular the lawyer for company B is going to be looking 
to demonstrate their worth to management by demonstrating that they have 
successfully ensured that equally favorable terms will be available from othe 
companies.
 
 
Another important case is the defensive patent or patent application which is 
understood to be complete garbage by everyone including the owner  but can be 
finessed to establish a dominant position in a working group before it begins. 
The 'its my ball and I'm taking it home unless I get to bat first' gambit.
 
 
Another way to tip the scales would be to specify whether the IPR regime is 
RAND or RANDZ in the charter and allow this to be changed by rechartering.
 
We already make a limited IPR release when submitting an Internet Draft. I see 
two cases of interest:
 
1) The whole point of the proposal is to make the ideas covered by the IPR into 
a standard.
2) A proposal is made which incidentally happens to involve other IPR held by 
the submitter's company that the submitter is either not aware of or not aware 
of the connection.
 
The second is the corner case concern which motivates a lot of the big company 
objections to up front declarations. But in practice the first point is much 
more frequent.
 
If the first case holds I think the submitter should either state that this is 
a RAND proposal when they submit or get the necessary approvals to submitt as a 
proposal for RANDZ - IF ACCEPTED.
 
 
If we get two RANDZ proposals and one thats only RAND we don't need to talk 
about the third one unless the IPR changes.
 
________________________________

From: Sam Hartman [mailto:hartmans-ietf(_at_)mit(_dot_)edu]
Sent: Tue 23/10/2007 9:07 AM
To: Scott Brim
Cc: ietf(_at_)ietf(_dot_)org
Subject: Re: A priori IPR choices [Re: Third 
LastCall:draft-housley-tls-authz-extns]



"Scott" == Scott Brim <swb(_at_)employees(_dot_)org> writes:

    Scott> On 22 Oct 2007 at 17:46 -0400, Sam Hartman allegedly wrote:
    >> * Phil's proposal has been shot down prematurely in my opinion.
    >> I agree that his current version would not fly.  However I do
    >> think there are working groups that could make conclusions
    >> about their patent policies and for which doing so would have
    >> helped the effort a lot.

    Scott> Working Groups have the freedom to do that if they wish.  I
    Scott> don't want a simplistic edict from on high that all working
    Scott> groups must do so.  Interactions between issues, technical
    Scott> and otherwise, are way too varied and potentially
    Scott> complicated for such shallow rule-making.

I agree that forcing working groups to make a decision at the
beginning would be bad.  I think the you must decide part of Phil's
proposal is one of the things that would have to go.  Phil may argue
that's the only value his proposal has; I disagree.

    >> Working through draft-housley-tls-authz-extns gave me a
    >> personal significant lack of confidence in our patent policies
    >> and whether they meet our goals and objectives.  I also wonder
    >> whether our goals and objectives may have shifted somewhat
    >> since they were written.  However I'm definitely uncomfortable
    >> with relying on our existing documents in any real dispute.

    Scott> I think the problem is that because we have a wide range of
    Scott> opinion and desired outcome, we cannot create simple rules,
    Scott> which means the difficult cases take a lot of discussion.
    Scott> I think that's important to preserve, in order to support
    Scott> the possibility of new outcomes.

My lack of confidence had more to do with doubting that our policies
would do what we want in court, concerns that there are ambiguities,
lack of clarity and that sort of thing than that they allowed for
discussion.


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