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Re: IESG Considering a Revision to NOTE WELL

2012-11-07 10:00:33
On 11.7.2012 09:57 , "John Leslie" <john(_at_)jlc(_dot_)net> wrote:

Stephan Wenger <stewe(_at_)stewe(_dot_)org> wrote:
... 
It is, in most cases, not to the advantage of a rightholder to disclose
a patent unless he is undeniably obligated to do so...

  This is a really strange statement, at first blush.

  So I ask Stephan to clarify what he meant to say (before I react to
it).

The vast majority of non-third-party patent disclosures are made by the
rightholder's legal, and not only discloses the patent, but also promises
certain licensing terms (most often RAND, RF, or a non-assert promises
that has many similarities with an RF license).  (This is a shortcut of
the official procedure which would require the IETF brass to ask for
licensing terms after an disclosure without terms has been made.)  Having
made such a statement restricts the freedom of business of the rightholder
with respect to these patents.  Restricting the freedom of business is
usually not a useful thing for a business.

Further, the mere knowledge of the existence of a patent claim against a
specification can derail the inclusion of that technique from the draft.
Assuming the technique was proposed not only for the benefit of getting a
patent in, but for other motives (which, I hope, is still the case of the
vast majority of contributions made to the IETF--I'm not so sure in some
other standards bodies :-), having a patent disclosure against it is not
to the advantage of the proponent.

Of course, the legal folks also have to keep in mind that not disclosing a
patent also can have negative consequences if that patent were asserted
against the standard later.   So they check very carefully whether they
are "undeniably required to" make a disclosure, but if they think they
are, they also make such a disclosure.

Gaming the system by over-declaring (to kill a technology through FUD) or
especially under-declaring (in the hopes to get a patented technology in
the standard without agreeing to encumbrances) is known to have happened,
but it's IMO really not that big an issue any more--mostly, because courts
have brought the hammer down on rightholders who tried.

Clearer?

Stephan



--
John Leslie <john(_at_)jlc(_dot_)net>