After reviewing draft-bradner-rfc3979bis-08.txt, I would propose the following
in order to bring additional clarity and certainty to the obligations imposed
on Area Directors and WG chairs. This proposal relates to the definitions of
"Participating in an IETF discussion or activity", and "Participating" and
Section 5.1.2.
There are two actors in Section 5.1.2: "Contributors" and "Participants".
Contributors are a subset of Participants. While there is an obligation on
Contributors to disclose IPR of which they are aware which relates to their
Contribution, there is also an IPR disclosure obligation on non-Contributor
Participants, that is, those who have Participated in an IETF discussion or
activity. In this draft, "Participating" is defined to mean "acting in order
to influence the outcome of a discussion relating to the IETF Standards
Process. Without limiting the generality of the foregoing, acting as a working
group chair or Area Director constitutes "Participating" in all activities of
the relevant working group or area."
For non-Contributing Participants who are WG chairs or Area Directors, personal
knowledge of IPR should be contemporaneous with action taken on the
Contribution. Such actions could be the original submission of the
Contribution, submission of updated drafts thereof or last call. For example,
a WG chair or Area Director serving in 2016 who assisted in the review of an
Invention Disclosure (IVD) for their company in 2012 and has since forgotten
about this IVD, does not "reasonably and personally" know of IPR meeting the
conditions of Section 5.6 if the Contribution by another in their domain is
made in 2016. In other words, there is no affirmative obligation on a WG chair
or Area Director, for a Contribution within the Area Director's or WG chairs'
domain, to go back and review company IP activities in which they were or might
have been exposed to refresh recollection. To clarify this, I would propose
deleting the phrase "reasonably and" in Section 5.1.2.
Further, because WG chairs and Area Directors should not be expected to predict
the outcome of the uncertain patent prosecution process, the phrase "may
ultimately Cover that Contribution" should be deleted in Section 5.1.2. Even
assuming a WG chair or Area Director has personal knowledge of a pending patent
application, it is very difficult, if not impossible, to predict the outcome of
patent prosecution and ultimate claim scope. Notwithstanding the definition of
"Covers" or "Covered", there is no such thing as a "valid" claim of a patent
application (including a provisional patent application). To be exactly
precise, "Covers" or "Covered" should only refer to claims of issued patents,
but that discussion is for another time. For now, to bring certainty to the
process, WG chairs and Area Directors should only be required to take a
snapshot of the situation as it exists at the time of the Contribution related
event (original submission, update, last call) of which they are !
participating to determine whether they then have personal knowledge of IPR
related thereto.
Thus, I would propose Section 5.1.2 be amended as follows:
If an individual Participates relative to a written Contribution (other than a
Contribution that is not intended to be used as an input into the IETF
Standards Process) made by another person and such Participant personally
knows of IPR meeting the conditions of Section 5.6 which the Participant
believes Covers, or which the Participant personally knows his or her employer
or sponsor may assert against Implementing Technologies based on such written
Contribution, then such Participant must make a disclosure in accordance with
this Section 5.
Also, the definition of "Participating in an IETF discussion or activity" and
"Participating" should be amended as follows:
"Participating in an IETF discussion or activity": means making a Contribution,
as described above, or in any other way acting in order to influence the
outcome of a discussion relating to the IETF Standards
Process. Without limiting the generality of the foregoing, acting as a working
group chair or Area Director shall constitute "Participating" to the extent
such person engages in discussions or review of a Contribution as part of the
activities of their relevant working group or area. "Participant" and "IETF
Participant" mean any individual Participating in an IETF discussion or
activity.
Respectfully, Mike Cameron