Subject: RE: Intellectual Property Considerations

From: "Ray Qiu" <[email-masked]>
Date: Thu, 23 May 2002 13:48:16 -0700

Curtis,

Thanks for the info.  I am not worried about any legal. :-)

I was just feeling weird that such thing could happen to  an IETF working group 
document.  I thought the goal at IETF is providing solutions to public internet 
communities.  Anyway...

Will all the drafts/RFCs start putting such a paragraph in the document from
now on? :-)

Ray

-----Original Message-----
From: Curtis Villamizar [mailto:[email-masked]]
Sent: Thursday, May 23, 2002 1:39 PM
To: Ray Qiu
Cc: Ajay Simha; [email-masked]
Subject: Re: Intellectual Property Considerations 

In message <[email-masked].
com>, "Ray Qiu" writes:
> Ajay,
> 
> Thanks for the response.  What will happen if other people's contributions
> are pretty big changes to their idea? :-)
> 
> If people want to apply patent, it seems to make sense for them to take 
> their document out of IETF working group.
> 
> Thanks.
> 
> Ray

Ray,

I'm not a lawyer but here is my uninformed opinion.

For something to be patented an idea must be unique, original, and
non-obvious.

When something is in the patent application process, the application
is not disclosed so we have no idea what is being applied for.

Many patents are granted that should not have been granted and would
never hold up in court.  Of these, some are challenged and the patent
is invalidated.  For example, if the patent examiner is unaware of
prior work when the patent is enforced it may be challenged and
invalidated.

If a patent is granted, it can only be challenged if there is an
attempt to enforce it.  The holder of a patent, realizing that the
challenge may be invalidated (or in some cases is almost certain to be
invalidated), may decide simply to threaten enforcement but not follow
through.  If so, the patent is never challenged and remains on the
books.

A good example of the prior situation is the IBM RISC patents in the
1980s.  IBM had numerous patents and tried to threaten Sun, MIPS, and
anyone else making a RISC chip.  Many people publicly commented,
pointing to prior work, and IBM simply didn't pursue the enforcement.
The patents remain on the books but in this case are ignored.

When and if a patent is granted, it is possible to discuss whether it
can safely be ignored.  If it is denied, then the Intellectual
Property message in an internet-draft or RFC should be removed, but
there is no way to tell that the rejection has occurred unless the
party who applied informs us.  During the time (often years) when
there is an application but no decision on the part of the patent
office, its all a big mystery.

The only thing someone in the IETF can do faced with an Intellectual
Property statement in an internet-draft is look at the internet-draft
and try to figure out what if anything looks unique, original, and
non-obvious.  If nothing other than the arrangement of bits is really
an original idea, then it is unlikely that a patent will be granted,
enforced, and upheld.  Since judges that rule on patents are
non-technical, whether something would be upheld is anyone's guess,
regardless of merit.

[IMHO - the patent system does the technical community a great
disservice, in this field in particular, but also in others.]

It is important to point out that I'm not a lawyer so I can't give
legal advice.  You may want to consult a lawyer for all of your life's
major decisions and the minor ones too and perhaps not even speak to
us mere mortals.  :-)

Curtis

> -----Original Message-----
> From: Ajay Simha [mailto:[email-masked]]
> Sent: Thursday, May 23, 2002 12:39 PM
> To: Ray Qiu
> Cc: [email-masked]
> Subject: Re: Intellectual Property Considerations
> 
> 
> On Thu, 23 May 2002, Ray Qiu wrote:
> 
> >RQ:Hi,
> >RQ:
> >RQ:In the draft-ietf-mpls-lsp-ping-00.txt, there is one paragraph called "In
> tellectual
> >RQ:Property Considerations" where the vendor is seeking patent protection.  
> But this
> >RQ:document is a MPLS working group document!  Does it mean other people
> >RQ:can not comment on the draft or can not contribute to the draft?  Then wh
> at is
> >RQ:the point of making it a working group document?
> 
> You can comment/contribute but if the patent is approved it is their idea.
> It may mean that if a vendor want to use this idea they may have to pay
> royality to these folks or get some approval of some sort :)
> 
> -ajay
> >RQ:
> >RQ:May someone please help me to understand here?
> >RQ:
> >RQ:Thanks!
> >RQ:
> >RQ:Ray
> >RQ:
> >RQ:
> 
> -- 
> 
>

---

From: Curtis Villamizar <[email-masked]>
Date: Thu, 23 May 2002 19:51:38 -0400

In message <[email-masked].
> Will all the drafts/RFCs start putting such a paragraph in the document from

It might be worth considering writing an independent document based on
known prior work and ideas and eliminating any doubt.  Its not like
ping is a new idea or there is anything new or unique in LSP ping that
we can't do without.  If I thought there was anything on which a valid
Intellectual Property claim could be made, I'd be worried.  What could
be new - a packet with a timestamp in it?  Ping itself?  If the patent
is narrow enough to stand it is easily avoided, broad enough to not be
avoided, easily knocked down due to prior work.  Again, I'm not a
lawyer so ignore me.

I certainly hope the trend toward Intellectual Property notes in
internet-drafts reverses.  (I also wish Intellectual Property and
Internet Protocol didn't both end up with the IP acronym, but there
are some things we just have to live with).

Curtis