So, one might argue that an AD can be unaware that a particular
document includes something that needs to be disclosed up to the
point that they take some action on that document, such as sponsoring it.
Yes, but is that an issue? The AD is only required to disclose when
she is "reasonably and personally aware" of the need for a disclosure,
which will presumably become the case when she actually reads the draft
(or sees the slides that describe the technology in question).
Be careful here: I think it is an issue.
The "reasonably and personally aware" applies to the IPR, not to the
participation. If I'm participating in active discussion about
Section 4 of document X, and I should be reasonably and personally
aware of IPR my employer holds with respect to Section 3 of document
X, we aren't going to happily accept that I didn't read Section 3 so I
don't have a responsibility to disclose.
If we're saying that, say, ADs are considered to be Participants with
respect to every document and discussion in every working group in the
area -- and I see why some people think that's wise and appropriate --
then we're saying that I have a responsibility to disclose whether or
not I've read the documents, and waiting until AD Evaluation state
would be a late disclosure. Consider that the working group might
have been proceeding for a couple of years and many I-D revisions
under the assumption that the technology is unencumbered... and then I
dump an IPR statement on them just as they've finished.
This really is a tough one: it would be nice if the late disclosure
didn't happen, but ADs can't reasonably be expected to read every
draft in every working group early on... and, as others have said, it
would be very bad if this disclosure requirement gave us even fewer AD
candidates than we have now.
Barry