There is certainly something wrong, but the source is not necessarily the IETF.
The USPTO seems to be a bigger source of the problem here.
There are many problems with the current approach of leaving patent policy to
groups, not least the fact that case by case negotiation on a per-working group
basis is the least likely to achieve what IETF participants want.
As we saw in the case of MASS, IPR holders are unlikely to make concessions in
one working group unless they can expect reciprocity and that other IPR holders
will be held to the same standards in other working groups.
At this point we do in fact understand how to grant a right to use a patent in
an open source implementation in a manner that protects the interest of the IPR
holder in enforcing reciprocal rights in the standard. But at the time we did
not. The concept of a cure clause only came later.
There were many problems with the IETF patent process. Not least the fact that
many of the participants had no idea what they were talking about. As far as I
know, I was the only person to submit a proposal to that group that had a
lawyer as a co-author. But that did not stop certain persons who are not
lawyers and have never worked in a practices group as I have dismissing my
position as being uninformed in their view.
I strongly suspect that one of the reasons for the current state of the IETF
IPR policy is that the only people who get sufficiently interested in it to
actually attend meetings tend to be open source ideologues, representatives of
large IPR holders and private consultants offering expert testimony in patent
disputes.
The proposal that I made then was that when a working group is started, it
specify the IPR criteria under which it is chartered. In some cases it makes
perfect sense to charter a group that will be using encumbered technology. In
other cases the entire purpose of the group requires that any technology be
open and unencumbered.
I also proposed that rather than attempting to create yet another patent
policy, that the IETF simply outsource the approach. In OASIS a working group
specifies the IPR policy at the start and may choose either an open or a
proprietary one. In W3C all groups are required to have an open policy.
What that means in practice is that it is possible to have a specification that
has optional extensions that are encumbered or purportedly encumbered. But it
must be possible to implement the spec without using the encumbered options.
Both policies are in theory vulnerable to the type of denial of standard by
bogus assertion of IPR rights attack described. But in practice so are
implementations.
-----Original Message-----
From: ietf-bounces(_at_)ietf(_dot_)org on behalf of Lawrence Rosen
Sent: Fri 2/13/2009 11:18 AM
To: ietf(_at_)ietf(_dot_)org
Subject: References to Redphone's "patent"
Lots of the recent emails on this list refer to Redphone's "patent" but
there is no such thing.
As anyone who has ever worked with real patents knows, there is a great
difference between a patent application and a patent. Whatever claims are
written in patent applications are merely wishes and hopes, placeholders for
negotiated language after a detailed examination of the application. Until
the PTO actually issues a patent, nothing is fixed. And even then,
newly-found prior art and other issues can defeat an issued patent.
Why are we all so afraid of Redphone? Who gives a damn what patent claims
they hope to get?
There's something wrong with the IETF process if spurious and self-serving
assertions that "a patent application has been filed" can serve to hold up
progress on important technology. I wish you'd ask real patent attorneys to
advise the community on this rather than react with speculation and a
generalized fear of patents.
/Larry
Lawrence Rosen
Rosenlaw & Einschlag, a technology law firm (www.rosenlaw.com)
3001 King Ranch Road, Ukiah, CA 95482
707-485-1242 * cell: 707-478-8932 * fax: 707-485-1243
Skype: LawrenceRosen
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