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Re: Last Call on draft-bradner-rfc3979bis-08.txt ("Intellectual Property Rights in IETF Technology")

2016-04-25 15:15:49
Thanks Pete.

I’m working slowly through your comments, but wanted to agree on at least these 
from my personal perspective:

A few editorial ones suggested by some lawyer friends. They all seem 
eminently sensible to me:

- Section 5.5(A): s/i.e./e.g.

- Section 5.5(B): s/royalty rates/royalties. I'm told that there are 
royalties that might not have "rates" associated with them.

yes

- Section 5.5(C): Two things:

OLD
     and will attach to the associated IPR
NEW
     and will attach, to the extent permissible by law, to the associated IPR
END

I'm told that there are some jurisdictions where you may not be able to do 
that.

yep

OLD
     must ensure that such
     commitments are binding on any subsequent transferee of the
     relevant IPR.
NEW
     must ensure that such commitments are binding on a transferee of
     the relevant IPR, and that such transferee will use reasonable
     efforts to ensure that such commitments are binding on a
     subsequent transferee of the relevant IPR, and so on.
END

The object of the "subsequent" wasn't clear, so this just spells it out. 
Wordy, but more precise.

right

- Section 7, paragraph 6:

The only change in this paragraph from 3979 was to add the word "all" in the 
second-to-last sentence. My lawyer friends tell me that this little change is 
opening a can of worms, having to do with licensing to makers of parts 
instead of implementers of the whole specification. I don't think we meant to 
change the meaning from the 3979 meaning, and I certainly don't think that we 
meant to change some implication about whether folks in general needed to 
license to people that make parts where they wouldn't have before. Was there 
something unclear about that sentence that needed the word "all" added to it? 
We aren't making a substantive change, are we? Can we just strike it? It 
seemed pretty clear to me before.

agree

As far as the concern, the second part of the next sentence in 5.4.2(A) is 
worrisome:

                                                                   If a
      patent has issued, then the new IPR disclosure must include the
      patent number and, if the claims of the granted patent differ
      from those of the application in manner material to the relevant
      Contribution, the IPR disclosure must describe any differences in
      applicability to the Contribution.

The first part is fine, though it repeats what's in 5.4.1 already, so I think 
it can be dropped. But the second part is what I'm concerned about. We've 
never before required disclosures to determine and discuss the applicability 
of the disclosure to the Contribution, and nowhere else in this document is 
that mentioned. Indeed, we go to great lengths to say that the leadership of 
the IETF doesn't try to figure out applicability, and that even WGs or the 
IESG can only take into account their opinions of what the applicability is. 
As a general rule, I don't think we can ask people who disclose to do the 
analysis to determine what parts of the patent do or do not apply to a 
particular contribution. As we say elsewhere, that's really up to a court. So 
I think the above should just be dropped.

I agree, although I wonder if the intent was to cover a case where — given the 
changes in claims — the issued patent no longer covers the draft. But, even so, 
there’s a practical concern: I’m not sure it is easy to get lawyers to state 
that they have no claims on a particular topic.

Jari

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