Lawrence Rosen wrote:
Steven Bellovin wrote:
Right. Any IPR policy has to acknowledge the fact that relevant
patents can be owned by non-troll non-participants. (Too many
negatives there -- what I'm saying is that IETFers don't know of all
patents in the space, and there are real patent owners who care about
their patents, even though they aren't trolls.)
I agree, but I suggest that our new IPR policy ought to set expectations for
how we deal procedurally with such outside encumbrances when discovered. The
defensive termination provision in most contributors' IETF patent grants can
also help to protect our specifications from trolls and some third-party
patent owners, depending upon how those grants are worded.
For several reasons, it is difficult to imagine an IETF-wide procedure
that allows the existence of a patent to trump other considerations of
protocol feasibility and deployability:
- Many patents are believed to be invalid or indefensible. IETF as an
organization cannot get in a position of deciding whether a patent is
valid or defensible, both because it doesn't really have the resources
or in-house expertise to do this, and because the only way to know for
sure is to go through a lengthy court process, perhaps in several
different countries. And yet, if there is a consensus among those who
are invested in the technology that a particular patent isn't going to
present an actual obstacle to deployment, it makes sense to let it go
forward.
The alternative - letting a dubious patent block or significantly delay
approval of an IETF standard - gives dubious patents much more power
than they deserve.
- A similar argument can be made for patents that are valid and
defensible, but for which the applicability to a given protocol is dubious.
- There have been cases in the past where apparently valid and
applicable patents, existed but would expire soon. Some of our
standards appear have a useful lifetime of many decades. From that
point of view, a patent that has been in force for a few years might be
a short-term concern. Whether this is the case depends on many factors,
including the remaining lifetime of the patent and the nature of the
protocol under discussion. An IETF-wide policy doesn't seem to make
sense here, especially if the effect of that policy were to delay work
on a protocol that probably wouldn't be ready for deployment until the
patent had expired, or nearly so, anyway.
- There are cases for which a patent with an RAND license presents an
insignificant barrier to deployment, because a substantial monetary
investment would be required in any event to implement a protocol. For
instance, a protocol that inherently requires expensive hardware to
implement, but for which the license fee is a small portion of that
required to pay for the hardware. Again, this is something that needs
to be evaluated on a case-by-case basis.
- Just because it appears at first that a protocol might be impaired by
the existence of a patent, doesn't mean that a workaround won't be found
as the protocol is developed. This has happened many times. Also,
patent holders have been known to make licenses available under more
attractive terms precisely because the technology was being considered
for an IETF standard. That kind of pressure/encouragement might well be
more effective at making useful technology available to the Internet
community than a blanket patent policy.
Speaking as someone who has been involved in IETF for about 17 years
now, by far the best way to ensure that IETF protocols to be safe for
open source implementors is for open source implementors to participate
in IETF working groups. IETF's policy of rough consensus means that
every interested party has a strong voice when it comes to objecting to
things that will hamper implementation or deployment.
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