RE: Proposal to create IETF IPR Advisory Board

Stephan Wenger wrote:
> My personal view on PAGs, therefore, is that they have not delivered what
> they promised.  
Hi Stephan, 

As always, I appreciate your response. Allow me to suggest, though, that the
examples you cited prove the success of PAGs, at least as I hoped they would
be.

Section 7 of the W3C Patent Policy was a carefully crafted compromise that
finally ended three years of acrimonious debate in the W3C Patent Policy
Working Group. It got so bad at one meeting that I, as an invited expert and
representative of the open source community, threatened to shoot a water
pistol that Danny Weitzner gave me at one of the opponents of that
royalty-free W3C policy. :-) 

So when I suggest W3C's Section 7 (PAGs), along with the PSIG, as a model
for IETF, I fully expect arguments.

You described two W3C PAG situations, one in which "community pressure
inside W3C as a whole led the rightholder to change its licensing
arrangements," and another in which "a somewhat different approach was
chosen instead." In what sense isn't that success if the goal--as it is in
W3C--is to avoid patent encumbrances to its specifications? I'm delighted
that our hard-fought compromise PAG solution to patent encumbrances worked
for the W3C community as intended!

I recognize that there is no consensus in IETF to refuse patent encumbrances
entirely. But that's not the issue for an IPR Advisory Board. Such boards do
not set policy, they advise about its implications. So if an IETF IPR
Advisory Board were to say to the working group, "that's a serious patent
and it will cost money to make and use products...," then IETF can still
decide to proceed. Nothing changes with respect to policy.

That, by the way, was what the compromise in W3C Patent Policy Section 7 was
all about. At the end of the day, even W3C can elect to proceed with a
patent-encumbered standard. However, from my perspective it is fortunate
that, as a result of the PAGs, the community is likely to figure out
collectively how to work around the encumbrance given the right skills
applied to the problem!

That's really what opponents of an IPR Advisory Board fear. That's what
these same people feared when the PAGs were first proposed as a compromise
in W3C.

Best regards,

/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


> -----Original Message-----
> From: Stephan Wenger [mailto:stewe(_at_)stewe(_dot_)org]
> Sent: Thursday, February 19, 2009 10:58 AM
> To: lrosen(_at_)rosenlaw(_dot_)com; ietf(_at_)ietf(_dot_)org
> Subject: Re: Proposal to create IETF IPR Advisory Board
>
> Hi Larry,
>
> As you know better than most here, including myself, W3C uses two very
> different bodies to cope with IPR matters:
>
> 1. the PSIG, a standing committee, issues advise on policy interpretation
> and maintains the policy FAQ.  To the best of my knowledge, the PSDIG does
> not look at individual patents or (draft) W3C Recommendations.
>
> 2. PAGs are formed whenever W3C has obtained knowledge that a patent may
> be
> relevant to a (forthcoming) W3C Recommendation, AND that patent claims may
> not be available under licensing terms compatible with the W3C policy.
> They
> have a very clear mission: clarify, whether the draft Recommendation can
> be
> practiced in disregard of the patent, whether there could be a
> design-around, or recommend that the Recommendation not be published.
>
> The PSIG is, IMHO, as useful body and does useful work.  It's equivalent
> is
> the IPR WG (just concluded).  If and when we have trouble with the policy
> and/or its interpretation, IMHO, the IPR WG should be restarted.  Our
> oversight on the copyright RFCs may be such a reason.
>
> PAGs, OTOH, have no equivalent in the IETF, and IMHO also have a history
> of
> failure in W3C---which leads me to question their value for the IETF.  My
> understanding of the very limited number of W3C PAGs that have been called
> on, the VoiceXML PAGs wrapped up without providing technical design-around
> recommendations---or advice to consider the patent in question as
> irrelevant
> to the cause---because community pressure inside W3C as a whole led the
> rightholder to change its licensing arrangements.  And, in case of the REX
> PAG, the outcome was the the REX spec (which was IMHO quite useful, but
> I'm
> biased here) was rescinded.  A somewhat different approach was chosen
> instead.  However, my understanding is that the very limited, if any,
> "analysis" that took place in the REX PAG was NOT fed back into the design
> process.  Plus, the REX case enjoyed full cooperation of the rightholder
> on
> the encumbrance analysis front, though not necessarily on the licensing
> commitment front.  I'm not going into the ugly cross-SDO politics that
> played a role here.
>
> My personal view on PAGs, therefore, is that they have not delivered what
> they promised.  I can also understand why: the analysis of third party
> patents can be, depending on the legislation you are in, quite risky;
> speaking in public about the analysis is almost always risky (willful
> infringement, liability aspects, ...).
>
> If PAGs in the W3C---with its infrastructure of attorneys on staff,
> certain
> confidentiality requirements, and a very clear policy on what licensing
> terms are acceptable and what are not---are that "useful", how could a
> similar IETF effort possibly work?  The IETF has no membership, no
> attorneys
> on staff, not enough budget to retain attorneys to enable the analysis of
> the dozens (hundreds now?) of IPR disclosures and disclosed patents it
> receives every year, and no confidentiality model worth mentioning.
>
> Beyond that, the vast majority of *committed* IETF participants (those who
> do the vast majority of the technical work), and their sponsors (who pay
> for
> the vast majority of the technical work), appear to be quite happy with
> the
> licensing environment we have here.
>
> To summarize, I believe that spending cycles in order to attempt to adapt
> a
> non working mechanism, designed for a very different business environment,
> so to fix a non-problem, is not worth my time.  For more than one reason.
>
> Regards,
> Stephan
>
> P.s.: whatever we do, it would not be enough to make radicals such as the
> FSF happy anyway... so why bother.
<snip>

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