Subject: Cisco patent issues affecting VRRP

From: Matt Holdrege <[email-masked]>
Date: Tue, 27 Jan 1998 12:54:35 -0800

Folks who have attended the last two IETF VRRP meetings will recall that I
have raised the ugly issue of patents. I mentioned that I was told (about a
year ago) that Cisco had threatened suit over our use of home-grown code
that resembled HSRP/VRRP.

Many folks including some of the Cisco reps in the VRRP WG meeting have
asked me for more details as they believe that Cisco intends to have "fair
and equitable" licensing. So here it is. Below is a message from our
business manager who tried to get "fair and equitable" treatment from Cisco.

DISCLAIMER!!! I am not a laywer and this should be treated as hearsay!!! I
am Xing out the names out for fear of legal retribution. :) :)

============================================================================
I started with Mr X.  After a few phone calls he ceased returning my calls.

Then I called Mr Y. He is VP of IOS Licensing or something akin to that.
He refered me to Mr. Z.  I thought we were going to succeed with him, but
he quit returning calls when the IETF decided to go with VRRP.

In Mr Y's case I told him where to find a copy of the Cisco Patent and
suggested a modest one time paid up worldwide license fee might be a
reasonable position for Cisco to take since they offered it at an IETF
meeting.  I told him we were not interested in receiving any deliverables
from Cisco, just the rights to use and distribute the code we have already
developed that MIGHT infringe on their patent.
============================================================================

If anyone from Cisco can help us get fair treatment, I'd appreciate it. If
anyone from Cisco wants me to fill in the above names, let me know.

Matt Holdrege		http://www.ascend.com	[email-masked]

---

From: Tony Li <[email-masked]>
Date: Tue, 27 Jan 1998 15:50:46 -0800 (PST)

Matt,

In draft-li-hsrp-01.txt, you will find the statement:

2  Conditions of Use

   US Patent number 5,473,599 [2], assigned to Cisco Systems, Inc. may
   be applicable to HSRP.  If an implementation requires the use of any
   claims of patent no. 5,473,599, Cisco will license such claims on
   reasonable, nondiscriminatory terms for use in practicing the
   standard.  More specifically, such license will be available for a
   one-time, paid up fee.

You might note that this paragraph was added to comply with RFC 2026,
section 10.3.2, paragraph C, which reads in part:

   (C)  Where the IESG knows of rights, or claimed rights under (A), the
      IETF Executive Director shall attempt to obtain from the claimant
      of such rights, a written assurance that upon approval by the IESG
      of the relevant Internet standards track specification(s), any
      party will be able to obtain the right to implement, use and
      distribute the technology or works when implementing, using or
      distributing technology based upon the specific specification(s)
      under openly specified, reasonable, non-discriminatory terms.

Note that this paragraph has the operative words "upon approval".  While
Cisco's paragraph clearly does not have a contingency for HSRP not being
approved, I would find it hard to find fault with them for not honoring
those conditions when it is clear (at least in my humble understanding)
that to do so is not in their financial interest.

I'm sure that this irks you.  I find it bothersome as well.  However,
before you flame me, please understand that I am something of a bystander
here.

What does this mean to you?  Well, if you feel that your VRRP
implementation would infringe upon Cisco's HSRP patent, you're basically at
their mercy.

In my non-lawyer opinion, implementing VRRP does infringe and I sincerely
doubt that Cisco will ever actually license HSRP to anyone.  I suspect that
this makes VRRP effectively unimplementable and thereby assures Cisco of a
vendor lock on the technology.  Oh well.  The irony of having a working
group devoted to creating an open standard for the technology end up
precluding the open standard I find highly ironic.

Tony

---

From: Matt Holdrege <[email-masked]>
Date: Tue, 27 Jan 1998 16:47:30 -0800

>that to do so is not in their financial interest.

This is way too much legalese for an IETF WG, but...

The AD said that if VRRP made it to standards track that the IESG would
fully expect Cisco to comply with the above.

Again, the reason I posted to the list was due to many requests from the
meeting attendents including those from Cisco. I'm not expecting it to be
magically resolved anytime soon.

---

From: Eric W Gray <[email-masked]>
Date: Tue, 27 Jan 1998 19:58:04 -0500

One of the nice things about not being a lawyer is that anyone trying
to come after me for my malpractice insurance after listening to my
advice is wasting their time.

However.

If "a representative of a corporate entity" makes a statement of intent
based on which you take action potentially detrimental to your own best
interests and subsequently fails to carry out on their expressed intent,
they are in breach of contract.  Something any of you who has waited to
get an offer letter in hand before resigning probably already knows.

Deciding to use a potentially licensable technology on the belief that
licenses would be granted is certainly such an "action".  But does a
Internet Draft represent a corporate entity?  How about when it is
co-authored by a couple of employees of the corporate entity?

These are interesting questions...

[email-masked] wrote:
> (C)  Where the IESG knows of rights, or claimed rights under (A), 
>   the IETF Executive Director shall attempt to obtain from the 
>   claimant of such rights, a written assurance that upon approval by
>   the IESG of the relevant Internet standards track specification(s),
>   any party will be able to obtain the right to implement, use and
> Note that this paragraph has the operative words "upon approval". 
> While Cisco's paragraph clearly does not have a contingency for
> HSRP not being approved, I would find it hard to find fault with
> them for not honoring those conditions when it is clear (at least
> in my humble understanding) that to do so is not in their financial
> interest.
> 
> I'm sure that this irks you.  I find it bothersome as well. 
> However, before you flame me, please understand that I am
> something of a bystander here.
> 
> implementation would infringe upon Cisco's HSRP patent, you're
> basically at their mercy.
> 
> In my non-lawyer opinion, implementing VRRP does infringe and I 
> sincerely doubt that Cisco will ever actually license HSRP to
> anyone.  I suspect that this makes VRRP effectively unimplementable
> and thereby assures Cisco of a vendor lock on the technology.  Oh 
> well.  The irony of having a working group devoted to creating an
> open standard for the technology end up precluding the open standard
> I find highly ironic.
> 
> Tony

-- 
Eric Gray
EMail at mailto:[email-masked]
Phone (603) 659-6859

---

From: Eric W Gray <[email-masked]>
Date: Tue, 27 Jan 1998 19:58:04 -0500

However.

---

From: Tony Li <[email-masked]>
Date: Tue, 27 Jan 1998 17:37:52 -0800 (PST)

|  If "a representative of a corporate entity" makes a statement of intent
|  based on which you take action potentially detrimental to your own best
|  interests and subsequently fails to carry out on their expressed intent,
|  they are in breach of contract.  Something any of you who has waited to
|  get an offer letter in hand before resigning probably already knows.

While that's true, I think an interesting question was that of intent.
When we asked Cisco for a statement, it was clear (at least to me ;-) that
the intent was to comply with RFC 2026.  

I think that anyone arguing intent would have to show that Cisco's intent
was to make it a blanket license, regardless of advancement.  Given that
the statement was specifically about HSRP and not about all
implementations, I think that one would have a tough job.

|  Deciding to use a potentially licensable technology on the belief that
|  licenses would be granted is certainly such an "action".  But does a
|  Internet Draft represent a corporate entity?  How about when it is
|  co-authored by a couple of employees of the corporate entity?

How about when it is co-authored by a couple of employees of a different
corporate entity?  ;-)

|  These are interesting questions...

Inded.

|  The AD said that if VRRP made it to standards track that the IESG would
|  fully expect Cisco to comply with the above.

I wonder if Cisco even knows about those expectations...  or cares...  ;-)

Tony