> | And the flip side - we've moved an amazingly SMALL number of documents > | to Full Standard, and only when we *think* we *fully* understand > things. > > That's the problem. Or it is with the IPR issues. It is determining > whether > we can make that final step (widespread deployment is what is required, > expecting full understanding of almost anything is naïve) that actally > decides whether or not the IPR rights holder is being reasonable or not.
Ten years ago, we were mostly concerned with the "silent patent holder" problem. It is reasonably easy for a WG to make its own decision when the existence of the patents and the licensing conditions are disclosed up front, before the WG agrees on a solution. But the real problem occurs when the patent holder "ambushes the standard". Products get developed and fielded, and then the vendors or the users of these products get hit by an infringement lawsuit. The current process was designed to minimize this risk, on the belief that if an issue actually existed, it would surface during the early phase of testing, i.e. before the standard would move from "proposed" to "draft". The rationale was that there would not be much usage at that stage, and that if push came to shove the WG could re-design the standard so as to not require licensing of a hard-to-get patent. As KRE points out, the whole mechanism falls apart when vendors field products based on a proposed standard, not to mention an internet draft. There are other issues. The first one is the imprecision of the disclosure requirements. The current process does not exactly say who is required to disclose the existence of intellectual property. According to some interpretations, a working group chair whose organization holds patents affecting a draft discussed in the working group is not required to disclose these patents, if he or she does not contributes or otherwise participate in the discussion of this specific draft. A second issue is the interaction between the standardization process and non-disclosure agreements. For example, an IETF participant may know that his or her former employer has a patent claim on a technology considered for standardization; in fact, I know case where the participant is in fact one of the authors of the patent. Yet, the agreement signed when leaving an employer typically prevents disclosure of such information. In another example, a vendor may have to sign an NDA before learning that its product infringes on some other organization's patent. This vendor is then legally prevented to signal the existence of the patent claim to the IETF. I would contend that, if we have one urgent problem to solve, it is to find a way to ensure speedy disclosure of intellectual property issues that affect a standard. -- Christian Huitema
