Subject: draft-savola-ipr-lastcall-01.txt

From: Pekka Savola <[email-masked]>
Date: Fri, 9 May 2003 10:34:34 +0300 (EEST)

Hi,

I've submitted a new version of the ipr-lastcall draft to the repository.  
In the meantime, it's available at:

http://www.netcore.fi/pekkas/ietf/draft-savola-ipr-lastcall-01.txt

Comments are welcome, of course -- as I don't know how to improve the 
document at the moment :-)

Changes:
 - all comments should be reflected in this revision
 - some flexibility added for better DoS etc. resistance
 - some verbiage on "quality of claims", and whether "claims are known"
 - some reordering of text
 - require an IESG last call on documents only if the IETF has change 
control over them (no need for 3rd party SDO republications or proprietary 
protocols)
 - add IPR considerations section ;-)

Abstract

   This memo describes an additional policy with last calls regarding
   Intellectual Property Rights (IPR) claims.  The existence and the
   pointer to the IPR claims or an indication of non-existence of
   knowledge of such claims must be mentioned in all IETF last calls and
   should be mentioned in working group last calls.  Additionally, all
   documents under the IETF change control for which a last call prior
   to the approval was not required and IPR claims are known, must now
   be either last-called or rejected.

   This memo updates RFC 2026 and RFC 2418.

-- 
Pekka Savola                 "You each name yourselves king, yet the
Netcore Oy                    kingdom bleeds."
Systems. Networks. Security. -- George R.R. Martin: A Clash of Kings

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---

From: Harald Tveit Alvestrand <[email-masked]>
Date: Fri, 09 May 2003 11:12:48 +0200

Hi Pekka!

I like this thinking - and once we get the IPR claims into a database so 
that it's mechanical to generate "the list of all IPR claims known to 
pertain to this document set", it shouldn't add that much overhead either.

(I wouldn't want to be responsible for doing it today....)

> http://www.netcore.fi/pekkas/ietf/draft-savola-ipr-lastcall-01.txt

The document says:

   If claims arrive during or after the last call period, prior to the
   approval of the document, a new last call should be announced.

some issues with this one:

- if the new last call resets the clock, it makes the process take longer 
(especially for individuals, which get 4-week Last Calls)
- if claims arrive after Last Call expiry, but before IESG approval, they 
won't get noticed by the community

I suggest instead:

  If claims are filed after the beginning of the Last Call, but before
  IESG disposition of the document, and less than four weeks after the
  end of the Last Call, the filing of the claim is announced
  using the same method as for the Last Call.

  If claims are filed more than four weeks after the end of the Last Call,
  but the IESG has not yet made final disposition of the document, a new
  Last Call MUST be made before the IESG makes its final disposition.

(the "four weeks" is a tunable parameter - I just picked a value)

In the case I hope to be normal some time in the future (optimist!), the 
first paragraph should be enough to inform the community and the IESG about 
the IPR issues.

In the case of documents returned to the WG by the IESG for working out 
issues found in Last Call or IESG review, this often takes quite a bit of 
time, so reissuing the Last Call when it comes around again is a reasonable 
way to notify the community of changed IPR filings. Adds another 2 or 4 
weeks to the clock, but if we're more than 4 weeks delayed already, this 
might not be too critical.

Thoughts?

                         Harald

---

From: Pekka Savola <[email-masked]>
Date: Fri, 9 May 2003 16:17:57 +0300 (EEST)

Thanks for comments.

> pertain to this document set", it shouldn't add that much overhead either.

Indeed, a repository change would make this much easier.
 
> (I wouldn't want to be responsible for doing it today....)

Yes, it's a bit difficult, but if you know the draft(s), doing a grep in
the IPR repository index and subdirectories should give you a rather good
reassurance on this.

> (especially for individuals, which get 4-week Last Calls)

Yep.  But then again, the IPR should be known in advance already, and more 
importantly, it seems to generally take much longer than 4 weeks to get an 
IPR statement filed and the terms/applicability worked out.  So it seems 
to me that additional 4 weeks is not a problem, as long as it isn't used 
as DoS mechanism for unnecessary delay (for which reason there would seem 
to be some safeguards against it).

> won't get noticed by the community

I'm not sure if you misread or I miswrote (and now misread), but the
intent was that if a claim arrives after LC expiration but before IESG
approval, they will get noticed by the community in the form of a new last
call, and the community has a new chance to comment of the document.
 
>   using the same method as for the Last Call.

I'm not sure what you mean here .. announced by the IESG or ..?
 
>   Last Call MUST be made before the IESG makes its final disposition.

I think this should already be covered.

...

Note that you're here saying "claims are filed" rather than "claims
arrive".

By my using the latter, I meant to include e.g. Mr Doe from Foo company
saying on an IETF list "we have a patent this on this", but not yet filing
it in the repository.  (This would also include other statements which 
make it apparent there are very likely some IPR considerations.)

Was your usage intentional?

> first paragraph should be enough to inform the community and the IESG about 

I don't understand "the IESG" part here, so we must have different 
underlying assumptions.  Are you assuming that the person filing IPR 
claims would use IETF-announce to announce a new claim on 
under-disposition document? 
 
> might not be too critical.

I totally agree here.  Such a last call, if one would not do it otherwise, 
could indicate that the primary reason for the new LC is newly surfaced 
IPR, to make it clearer to the readers.

---

From: Scott W Brim <[email-masked]>
Date: Fri, 9 May 2003 09:41:45 -0400

> 2. General Last Call Procedure
> 
>    When last-calling a document, it should (WG last call) or must (IETF
>    last call) be mentioned whether IPR concerns are known.
> 
>    Such a short mention should include at least:
> 
>      o the existence of IPR claim(s), and
>      o the pointer to all the relevant claim(s) in the IETF IPR
>        repository.
> 
>    On the other hand, if there are no known IPR issues, the fact should
>    be clearly mentioned in the last call announcement.

Assuming that "claims" means "disclosures", I like this.  If "claims"
means pointers to specific patent documents, I don't.  I prefer to have
the level of indirection and abstraction in there that is represented by
the disclosure statements/forms.

>    If IPR claims are known but have not been recorded in the IETF IPR
>    repository yet, documents must not be last-called prior to the claims
>    appearing in the repository.

I'm not sure this has a beneficial result.  If someone has a claim which
is generally known, but doesn't disclose by the time of IETF last call,
they are already getting near to losing the right to enforce the patent.
However, if we add this requirement, DoS attacks are possible, along the
lines of what eventually led to rfc1915.  So, I would skip this and go
right on to the alternatives below, skipping "significant delay" as
well.  If, at last call, disclosure hasn't happened, generate a
placeholder and let them be embarrassed.

>    If, after a significant delay and attempts to get the IPR claims
>    registered to the repository are unsuccesful, the last caller can
>    choose either:
> 
>       1. to register a placeholder claim, giving a pointer to the
>          disclosure,
>       2. to indicate the fact that claims have not been registered in
>          the last call, giving a pointer to the disclosure, or
>       3. not to proceed until claims have been properly registered.
> 
>    Such placeholder claims must be clearly separated from other claims.

OK.  (Nit: I don't think placeholder disclosures have to be "separated",
but clearly distinguishable.  When I search through the disclosures I
don't want to have to search in multiple places.  Right now the main
search mechanism is grep.)

Thanks ... Scott

---

From: Pekka Savola <[email-masked]>
Date: Fri, 9 May 2003 18:11:28 +0300 (EEST)

> the disclosure statements/forms.

Agree.  "claims" here refers to filed disclosures or some other knowledge 
of IPR.

> they are already getting near to losing the right to enforce the patent.

The rule is there for basically to say "before you send drafts to the 
IESG, work out the IPR details".  (Perhaps this though should be more 
explicit.)

> lines of what eventually led to rfc1915.  

The below should give enough flexibility (the term "significant delay" is 
subjective: even a month or two could be considered one), IMO.

> So, I would skip this and go

Right.. but why not generate a placeholder before sending a draft to the 
IESG?
 
> search mechanism is grep.)

Right, thanks.

---

From: "todd glassey" <[email-masked]>
Date: Sat, 10 May 2003 12:47:47 -0700

----- Original Message ----- 
From: "Pekka Savola" <[email-masked]>
To: "Harald Tveit Alvestrand" <[email-masked]>
Cc: <[email-masked]>
Sent: Friday, May 09, 2003 6:17 AM
Subject: Re: draft-savola-ipr-lastcall-01.txt

> the IPR repository index and subdirectories should give you a rather good

This is too much work for the IETF to have to maintain, further if you are
maintaining it and any of its wrong - you get this liability.

---

From: Pekka Savola <[email-masked]>
Date: Sun, 11 May 2003 07:44:00 +0300 (EEST)

> maintaining it and any of its wrong - you get this liability.

There is no way around it.

Decisions have been called back for process errors before.  If someone 
notices IESG forgot to add a mention of this later on, the case could be 
revisited.

I don't see how this gives anyone a legal liability.