Subject: Comments on draft-bradner-rfc3979bis-02

From: "Adrian Farrel" <[email-masked]>
Date: Sun, 27 Jan 2013 13:23:07 -0000

Hello,

I am not normally subscribed to the list, so pardon me for any comments that you
have already received from other people. Also sorry if I re-open any
conversations already "resolved".

This is important work, and we do need to keep our IPR documents up-to-date.

Some notes of varying importance...

---

Section 2 is out of date with the document. But since you plane a ToC, I am not
sure that the out-of-date text adds any value.
OTOH, I think the document does merit an Introduction that describes what the
document is *for*. The Abstract manages this, so it shouldn't be too hard to
expand upon that text a bit.

---

Have you accidentally conflated RFCs 6701 and 6702? The mention in Section 6
certainly seems to intend 6701, but the reference in 14.2 is a bit confused
about authorship.

Actually, I wonder whether there would be benefit in adding a mention of 6702 as
well from somewhere in the document.

---

While it is correct to delete the boilerplate (formerly in 3979 section 5),
shouldn't this document mention the existence of the boilerplate and point to
the TLP?

---

5.4.2 B

In Section 13, which I read first, I found
      any IETF member can request an IPR holder to disclose foreign
      counterparts

...and I was moved to comment:
I can summon spirits from the vasty deep.
Why, so can I, and so can any man, But will they come when you do call for them.

But in 5.4.2 B I find...

      An IPR holder will disclose any foreign
      counterpart patent applications and patents relating to the IPR
      disclosed in an IPR disclosure upon the request of any IETF
      participant.

I note there is no optionality in this.

Assuming that there is no unreasonable fear of a company being DoS'ed, and
assuming that once a counterpart has been once disclosed it does not need to be
redisclosed, how does this process take place? Is the request just an email, or
is it handled through the IETF's IPR tools?

--- 

5.4.2 C
The fact that the individual has changed employer seems to me to be interesting
but a distraction. Surely the rule is that the individual must disclose in any
case that results in a Contribution being Covered by IPR that was not previously
disclosed against the relevant Contribution, and such IETF participant
reasonably and personally knows of such IPR.

---

I think it would be really helpful to make some statement about the implied
inheritance of IPR disclosures. This plays into when it is necessary and when
desirable to issue follow-up disclosures.

For example: When an I-D (any I-D) is revised from rev n to n+1 and the
disclosure was made against rev n. Is the disclosure automatically assumed to
apply to the new revision?

For example: When an I-D is replaced by another I-D and the replacement
relationship is shown in the data tracker by the Secretariat adding the
necessary flags. Is the disclosure on the old I-D automatically assumed to apply
to the new (replacing) I-D? This particularly applies to the adoption of an I-D
as a WG I-D.

For example: When an I-D is published as an RFC. Is the disclosure automatically
against the I-D assumed to apply to the RFC?

In all cases: what is required and what is desired wrt new disclosures?

---

In Section 1 para b I see:

      Throughout this memo, the term "written Contribution" is used.
      For purposes of this memo, "written" means reduced to a written or
      visual form in any language and any media, permanent or temporary,
      including but not limited to traditional documents, e-mail
      messages, discussion board postings, slide presentations, text
      messages, instant messages, and transcriptions of oral statements.

There is an element of loss of control over whether an oral statement is
converted to a transcript or not. It seems that an oral contribution can be
converted into a written contribution without the contributor being aware of it.
Notwithstanding Section 5.7, it seems that the oral contributor might be
required to take more action than they expected.

>From this perspective, I see no value in introducing a distinction between the
types of contribution. 

I also note that much of the claimed inherent imprecision (section 13) is
removed by the audio recording of many sessions. (I wonder what a court would
make of the claim that oral evidence given in court is inherently imprecise!)
And given that many people are working in a non-native language, I think that
written text may be deemed to be just as imprecise.

---

Also in Section 1 para b

      o  any working group or design team list, or any other list
         functioning under IETF auspices or the primary function of
         which is to facilitate IETF-related discussions,

Nice try, but a way to go.

1. A "list" is an "email list" and needs to be expanded.

2. Design teams are just groups of people working together. They may use mailing
lists or not. Are you trying to say "IETF-convened design teams"?

3.  "Primary function of which is to facilitate IETF-related discussions" So
company X has a mail list for employees of company X in order to advance some
work in the IETF that company X cares about. Your text says they have to treat
this as an IETF contribution and disclose IPR!

4. Note that this would appear to be additional information completely contained
within the previous bullet

5. The punctuation here makes things ambiguous. And the ordering doesn't help.
Maybe we can tweak the bullets a bit. (By the way, I don't care that a mailing
list established by the IETF for discussion of porridge bowls at IETF meetings
is accidentally covered by these rules!

OLD
      o  the IETF plenary session,
      o  any IETF working group or portion thereof,
      o  any IETF "birds of a feather" (BOF) session or portion thereof,
      o  the IESG, or any member thereof on behalf of the IESG,
      o  the IAB or any member thereof on behalf of the IAB,
      o  any IETF mailing list, web site, chat room or discussion board,
         including the IETF list itself,
      o  any working group or design team list, or any other list
         functioning under IETF auspices or the primary function of
         which is to facilitate IETF-related discussions,
      o  the RFC Editor or the Internet-Drafts function.
NEW
      o  the IETF plenary session,
      o  any IETF working group or portion thereof,
      o  any IETF "birds of a feather" (BOF) session or portion thereof,
      o  any IETF-sanctioned design team or portion thereof,
      o  the IESG, or any member thereof on behalf of the IESG,
      o  the IAB or any member thereof on behalf of the IAB,
      o  any IETF mailing list, web site, chat room or discussion board,
         operated by or under the auspices of the IETF, including the 
         IETF list itself,
      o  the RFC Editor or the Internet-Drafts function.
END

---

Finally in Section 1 para b

Is it an IETF contribution if I address my statement to IANA? The IAOC? The IETF
Trust? ISOC?

I know that the IRTF is separate, but if I send statements about IETF work to
the IRTF, do I escape?

---

Section 5.5 C

I like the way this has turned out. Is it necessary to also say that the
licensing declaration has been "properly made by an authorised person"?

---

Lurkers. I bet this one will run and run!

Whatever, you need to get the definition of "participation" moved up from 5.1.2
to the terminology and definitions in Section 1.

Section 5.1.2 has removed the "sit by in silence while others choose to adopt
your IPR into their specification" option. I am not saying this is bad (or
good), but I think this is a very large change in IETF philosophy and goes well
beyond editorial work and combination of 3979 with 4879. Of course, this issue
will need IETF consensus before the I-D becomes an RFC, but such a change should
not just pop up as part of IETF last call. (Don't assume that everyone who is
possibly interested in this sort of thing is subscribed to this mailing list.
With the greatest of respect to all of you present, this is a list for
"enthusiasts".)

---

Have fun,
Adrian

---

From: John C Klensin <[email-masked]>
Date: Sun, 27 Jan 2013 11:13:01 -0500

--On Sunday, January 27, 2013 13:23 +0000 Adrian Farrel
<[email-masked]> wrote:

>...
> 5.4.2 C
> The fact that the individual has changed employer seems to me
> to be interesting but a distraction. Surely the rule is that
> the individual must disclose in any case that results in a
> Contribution being Covered by IPR that was not previously
> disclosed against the relevant Contribution, and such IETF
> participant reasonably and personally knows of such IPR.

Comment on this one issue:

Suppose that I'm an employee of company A and that I'm aware of
IPR that the IETF would insist be disclosed (to simplify,
although it is not the only important case, assume that I'm
listed as the inventor on a patent application) if it were
relevant.  Suppose company A also imposes a rather fierce,
broad, and survivable NDA as a condition of employment.  Now
suppose I leave company A and, through and including the time I
left, the IETF was doing no work to which the patent might be
relevant even under a "disclose when in doubt" policy.  Finally,
suppose that, well after my departure from company A but while
the patent is still pending and the technology is being treated
by company A as extremely secret and proprietary, the IETF spins
up a WG to which the patent (if granted) would have very high
applicability and, in my new job, I'm a logical participant in
that WG.

Now that is a mess.  While I was at company A, I could at least
approach the powers-that-be and argue that it was in the
company's interest to disclose, especially if they wanted to be
treated as credible and acting in good faith in the IETF
community.  I could also argue that, by sending me to IETF
meetings, they had implicitly agreed to my disclosing whatever I
needed to disclose.  So, even if I could not disclose without
permission, I could reasonably hope to get that permission.
But, having left, my leverage is gone, especially if I'm now
working for a competitor and the company has few or no remaining
IETF participants who are aware their IPR and interested in the
relevant WG.  

If I try ask company A for permission to disclose, or that they
disclose themselves, they may refuse to even speak to me and, if
they do, may refuse to agree.  If I disclose without their
agreement, I make myself (and maybe even my current employer)
subject to whatever nasty penalties that NDA spelled out.   And,
if I don't disclose and don't stay completely out of the
relevant WG (or am sufficiently passive that an obligation to
disclose is not triggered), then I have failed in my obligation
to the IETF.  Moreover, if company A can effectively force me
into non-participation in the relevant WG (despite the new
company's wanting me there and active) by invoking the
disclosure rules and their NDA, then they have effectively
forced me into a retroactive non-compete agreement (something
that is illegal in many places).

I don't have an opinion yet as to whether this document
adequately addresses that cluster of issues but the above should
explain why this is not a mere distraction.

    john

p.s. while the details have been deliberately obscured and
particular actual cases are always more complicated, I have seen
scenarios very similar to the above play out -- it is not just a
theoretical possibility.

---

From: "GTW" <[email-masked]>
Date: Sun, 27 Jan 2013 11:42:13 -0500

editorial nit

who is it that can ask for disclosure of foreign patents/applications  "any 
IETF member"  (text in  5.4.2 ) or "any IETF participant"  (text in  13)

I  agree with  Adrian, how such requests and responses are to work deserves 
some elaboration

George T. Willingmyre, P.E.
President GTW Associates

-----Original Message----- 
From: Adrian Farrel
Sent: Sunday, January 27, 2013 8:23 AM
To: [email-masked]
Cc: [email-masked]
Subject: Comments on draft-bradner-rfc3979bis-02

Hello,

I am not normally subscribed to the list, so pardon me for any comments that 
you
have already received from other people. Also sorry if I re-open any
conversations already "resolved".

---

Section 2 is out of date with the document. But since you plane a ToC, I am 
not
sure that the out-of-date text adds any value.
OTOH, I think the document does merit an Introduction that describes what 
the
document is *for*. The Abstract manages this, so it shouldn't be too hard to
expand upon that text a bit.

---

Actually, I wonder whether there would be benefit in adding a mention of 
6702 as
well from somewhere in the document.

---

While it is correct to delete the boilerplate (formerly in 3979 section 5),
shouldn't this document mention the existence of the boilerplate and point 
to
the TLP?

---

5.4.2 B

...and I was moved to comment:
I can summon spirits from the vasty deep.
Why, so can I, and so can any man, But will they come when you do call for 
them.

But in 5.4.2 B I find...

Assuming that there is no unreasonable fear of a company being DoS'ed, and
assuming that once a counterpart has been once disclosed it does not need to 
be
redisclosed, how does this process take place? Is the request just an email, 
or
is it handled through the IETF's IPR tools?

--- 

5.4.2 C
The fact that the individual has changed employer seems to me to be 
interesting
but a distraction. Surely the rule is that the individual must disclose in 
any
case that results in a Contribution being Covered by IPR that was not 
previously
disclosed against the relevant Contribution, and such IETF participant
reasonably and personally knows of such IPR.

---

I think it would be really helpful to make some statement about the implied
inheritance of IPR disclosures. This plays into when it is necessary and 
when
desirable to issue follow-up disclosures.

For example: When an I-D (any I-D) is revised from rev n to n+1 and the
disclosure was made against rev n. Is the disclosure automatically assumed 
to
apply to the new revision?

For example: When an I-D is replaced by another I-D and the replacement
relationship is shown in the data tracker by the Secretariat adding the
necessary flags. Is the disclosure on the old I-D automatically assumed to 
apply
to the new (replacing) I-D? This particularly applies to the adoption of an 
I-D
as a WG I-D.

For example: When an I-D is published as an RFC. Is the disclosure 
automatically
against the I-D assumed to apply to the RFC?

---

converted into a written contribution without the contributor being aware of 
it.

types of contribution.

I also note that much of the claimed inherent imprecision (section 13) is
removed by the audio recording of many sessions. (I wonder what a court 
would
make of the claim that oral evidence given in court is inherently 
imprecise!)
And given that many people are working in a non-native language, I think 
that
written text may be deemed to be just as imprecise.

---

Also in Section 1 para b

2. Design teams are just groups of people working together. They may use 
mailing
lists or not. Are you trying to say "IETF-convened design teams"?

3.  "Primary function of which is to facilitate IETF-related discussions" So
company X has a mail list for employees of company X in order to advance 
some
work in the IETF that company X cares about. Your text says they have to 
treat
this as an IETF contribution and disclose IPR!

4. Note that this would appear to be additional information completely 
contained
within the previous bullet

5. The punctuation here makes things ambiguous. And the ordering doesn't 
help.
Maybe we can tweak the bullets a bit. (By the way, I don't care that a 
mailing
list established by the IETF for discussion of porridge bowls at IETF 
meetings
is accidentally covered by these rules!

OLD

---

Is it an IETF contribution if I address my statement to IANA? The IAOC? The 
IETF
Trust? ISOC?

I know that the IRTF is separate, but if I send statements about IETF work 
to
the IRTF, do I escape?

---

Section 5.5 C

---

Whatever, you need to get the definition of "participation" moved up from 
5.1.2
to the terminology and definitions in Section 1.

Section 5.1.2 has removed the "sit by in silence while others choose to 
adopt
your IPR into their specification" option. I am not saying this is bad (or
good), but I think this is a very large change in IETF philosophy and goes 
well
beyond editorial work and combination of 3979 with 4879. Of course, this 
issue
will need IETF consensus before the I-D becomes an RFC, but such a change 
should
not just pop up as part of IETF last call. (Don't assume that everyone who 
is
possibly interested in this sort of thing is subscribed to this mailing 
list.
With the greatest of respect to all of you present, this is a list for
"enthusiasts".)

---

Have fun,
Adrian

_______________________________________________
Ipr-wg mailing list
[email-masked]
https://www.ietf.org/mailman/listinfo/ipr-wg

---

From: "Adrian Farrel" <[email-masked]>
Date: Sun, 27 Jan 2013 17:38:07 -0000

Did your new employer not ask you whether you were subject to any existing NDAs?

The lawyers can have their feed on the carcass of whether a third party
disclosure would or would not be a breach. Let them.

You signed the NDA, you should consider yourself bound by it. You should also
have disclosed or explained to your employer that there are some things you will
not be able to do for them because of legacy legal requirements. This is one
such.

However, I think this plays into the "silent participant" discussion as well.
Resolving that (first?) makes this an easier question to debate.

Cheers,
Adrian

PS I played a lawyer once. He beat me in straight sets.

> From: John C Klensin [mailto:[email-masked]]
> Sent: 27 January 2013 16:13
> To: [email-masked]; [email-masked]
> Subject: Re: Comments on draft-bradner-rfc3979bis-02
> 
> 
>

---

From: John C Klensin <[email-masked]>
Date: Mon, 28 Jan 2013 08:02:13 -0500

> The lawyers can have their feed on the carcass of whether a
> third party disclosure would or would not be a breach. Let
> them.

In the scenario I'm positing, there is no third-party disclosure
issue, at least as long as we believe in individual
participation.  If I'm a listed inventor, whether I disclose or
not, the issue is first party.  And nothing in the present or
proposed procedures allows me to develop convenient amnesia
about my inventions when switch companies.

> You signed the NDA, you should consider yourself bound by it.
> You should also have disclosed or explained to your employer
> that there are some things you will not be able to do for them
> because of legacy legal requirements. This is one such.

And that is where things lead into a morass.  If, as occurred in
the case I'm using as a foundation, company A demands --as an
extension of the NDA and their retroactive interpretation of
other agreements, prior approval of any particular tasks I take
on for company B, they can easily make me unemployable (legal in
some places, not in others).  In particular, they can keep me
from participating in the IETF (no matter how participation is
defined), by arguing that, if I participate (or even observe
meetings and have conversations in the bar) I could accidentally
disclose some part of their secrets or other IPR.  Or, if they
"let" me participate (or observe, etc.) they can force me not to
disclose, bringing on whatever nasty sanctions are on the books
at the time.

> However, I think this plays into the "silent participant"
> discussion as well. Resolving that (first?) makes this an
> easier question to debate.

In this particular type of situation, I'm not sure it makes as
much difference as you think it does, but yes.

I don't have a solution to any of that.  Perhaps there isn't
one.  But it does play into the "chilling effect" question if
the rules requiring disclosure are broad enough to significantly
reduce someone's possible utility to a potential new employer
simply because they invented something (which they can't tell
the potential employer about) at a prior employer who doesn't
want to be forthcoming.

    john

---

From: SM <[email-masked]>
Date: Wed, 30 Jan 2013 23:08:13 -0800

Hi John,
>disclose, bringing on whatever nasty sanctions are on the books

The IETF is based on an assumption that I participate as an 
individual.  The reality is that I am restricted by a NDA to do what 
I believe is "right".  The IETF can try to solve the above use 
case.  There isn't any solution in sight at the moment.

There was a message posted to an IETF mailing list ( 
http://www.ietf.org/mail-archive/web/v6ops/current/msg15016.html 
).  There was a case last year about an IPR issue ( 
http://www.ietf.org/mail-archive/web/sieve/current/msg05211.html 
).  There wasn't any sanctions on the books at the time.  It's one of 
those awkward IETF moments where silence is bliss.

I took a quick look at draft-bradner-rfc3979bis-02.  In Section 1 there is:

   'Throughout this memo, the term "written Contribution" is used.
    For purposes of this memo, "written" means reduced to a written or
    visual form in any language and any media, permanent or temporary,
    including but not limited to traditional documents, e-mail
    messages, discussion board postings, slide presentations, text
    messages, instant messages, and transcriptions of oral statements.'

In Section 3.2 there is:

   'By submission of a Contribution, each person actually submitting the
    Contribution, and each named co-Contributor, is deemed to agree to
    the following terms and conditions, on his or her own behalf, and on
    behalf of the organizations the Contributor represents or is
    sponsored by (if any) when submitting the Contribution.'

I don't know the status of a contribution which is a transcription of 
an oral statement.  It is in my interest to follow the usual 
practices for minutes.

In Section 4:

    'When an IPR disclosure has been made as provided in Section 5 of
     this document, the IETF Secretariat shall request from the
     purported holder of such IPR, a written assurance that upon
     approval by the IESG for publication of the relevant IETF ..'

Is it existing practice to require that the assurance be submitted in 
paper form?

I suggest using IAD instead of IETF Secretariat in some places as it 
bears more weight.

In Section 5.2.2:

   'Participants who realize that IPR meeting the conditions of Section
    5.6 will be or has been incorporated into a Contribution that is
    likely, or is seriously being discussed in a working group, are
    strongly encouraged to make a preliminary IPR disclosure.'

What's "likely or is seriously"?  This memo is about IETF 
policies.  Section 5.2.2 might end up as a loophole.

In Section 5.7:

   "If a Contribution is oral and is not followed promptly by a written
    disclosure of the same material, and if such oral Contribution would"

How will I get that written disclosure from somebody I have never met 
before?  I'll describe Section 5.7 as looking good in theory but 
having a lot of failure modes in practice.

Regards,
-sm