RE: When is using patented technology appropriate?
Keith Moore wrote: For several reasons, it is difficult to imagine an IETF-wide procedure that allows the existence of a patent to trump other considerations of protocol feasibility and deployability: Who suggested otherwise? It is not the existence of the patent that matters, but its unavailability under license terms that allow implementation in *any* software. The more feasible and deployable the protocol, the more important will be FOSS implementations. Who's trumping who? /Larry -Original Message- From: Keith Moore [mailto:[EMAIL PROTECTED] Sent: Thursday, October 25, 2007 1:31 PM To: [EMAIL PROTECTED] Cc: ietf@ietf.org Subject: Re: When is using patented technology appropriate? Lawrence Rosen wrote: Steven Bellovin wrote: Right. Any IPR policy has to acknowledge the fact that relevant patents can be owned by non-troll non-participants. (Too many negatives there -- what I'm saying is that IETFers don't know of all patents in the space, and there are real patent owners who care about their patents, even though they aren't trolls.) I agree, but I suggest that our new IPR policy ought to set expectations for how we deal procedurally with such outside encumbrances when discovered. The defensive termination provision in most contributors' IETF patent grants can also help to protect our specifications from trolls and some third-party patent owners, depending upon how those grants are worded. For several reasons, it is difficult to imagine an IETF-wide procedure that allows the existence of a patent to trump other considerations of protocol feasibility and deployability: - Many patents are believed to be invalid or indefensible. IETF as an organization cannot get in a position of deciding whether a patent is valid or defensible, both because it doesn't really have the resources or in-house expertise to do this, and because the only way to know for sure is to go through a lengthy court process, perhaps in several different countries. And yet, if there is a consensus among those who are invested in the technology that a particular patent isn't going to present an actual obstacle to deployment, it makes sense to let it go forward. The alternative - letting a dubious patent block or significantly delay approval of an IETF standard - gives dubious patents much more power than they deserve. - A similar argument can be made for patents that are valid and defensible, but for which the applicability to a given protocol is dubious. - There have been cases in the past where apparently valid and applicable patents, existed but would expire soon. Some of our standards appear have a useful lifetime of many decades. From that point of view, a patent that has been in force for a few years might be a short-term concern. Whether this is the case depends on many factors, including the remaining lifetime of the patent and the nature of the protocol under discussion. An IETF-wide policy doesn't seem to make sense here, especially if the effect of that policy were to delay work on a protocol that probably wouldn't be ready for deployment until the patent had expired, or nearly so, anyway. - There are cases for which a patent with an RAND license presents an insignificant barrier to deployment, because a substantial monetary investment would be required in any event to implement a protocol. For instance, a protocol that inherently requires expensive hardware to implement, but for which the license fee is a small portion of that required to pay for the hardware. Again, this is something that needs to be evaluated on a case-by-case basis. - Just because it appears at first that a protocol might be impaired by the existence of a patent, doesn't mean that a workaround won't be found as the protocol is developed. This has happened many times. Also, patent holders have been known to make licenses available under more attractive terms precisely because the technology was being considered for an IETF standard. That kind of pressure/encouragement might well be more effective at making useful technology available to the Internet community than a blanket patent policy. Speaking as someone who has been involved in IETF for about 17 years now, by far the best way to ensure that IETF protocols to be safe for open source implementors is for open source implementors to participate in IETF working groups. IETF's policy of rough consensus means that every interested party has a strong voice when it comes to objecting to things that will hamper implementation or deployment. ___ Ietf mailing list Ietf@ietf.org https://www1.ietf.org/mailman/listinfo/ietf
Re: When is using patented technology appropriate?
Lawrence Rosen wrote: Steven Bellovin wrote: Right. Any IPR policy has to acknowledge the fact that relevant patents can be owned by non-troll non-participants. (Too many negatives there -- what I'm saying is that IETFers don't know of all patents in the space, and there are real patent owners who care about their patents, even though they aren't trolls.) I agree, but I suggest that our new IPR policy ought to set expectations for how we deal procedurally with such outside encumbrances when discovered. The defensive termination provision in most contributors' IETF patent grants can also help to protect our specifications from trolls and some third-party patent owners, depending upon how those grants are worded. For several reasons, it is difficult to imagine an IETF-wide procedure that allows the existence of a patent to trump other considerations of protocol feasibility and deployability: - Many patents are believed to be invalid or indefensible. IETF as an organization cannot get in a position of deciding whether a patent is valid or defensible, both because it doesn't really have the resources or in-house expertise to do this, and because the only way to know for sure is to go through a lengthy court process, perhaps in several different countries. And yet, if there is a consensus among those who are invested in the technology that a particular patent isn't going to present an actual obstacle to deployment, it makes sense to let it go forward. The alternative - letting a dubious patent block or significantly delay approval of an IETF standard - gives dubious patents much more power than they deserve. - A similar argument can be made for patents that are valid and defensible, but for which the applicability to a given protocol is dubious. - There have been cases in the past where apparently valid and applicable patents, existed but would expire soon. Some of our standards appear have a useful lifetime of many decades. From that point of view, a patent that has been in force for a few years might be a short-term concern. Whether this is the case depends on many factors, including the remaining lifetime of the patent and the nature of the protocol under discussion. An IETF-wide policy doesn't seem to make sense here, especially if the effect of that policy were to delay work on a protocol that probably wouldn't be ready for deployment until the patent had expired, or nearly so, anyway. - There are cases for which a patent with an RAND license presents an insignificant barrier to deployment, because a substantial monetary investment would be required in any event to implement a protocol. For instance, a protocol that inherently requires expensive hardware to implement, but for which the license fee is a small portion of that required to pay for the hardware. Again, this is something that needs to be evaluated on a case-by-case basis. - Just because it appears at first that a protocol might be impaired by the existence of a patent, doesn't mean that a workaround won't be found as the protocol is developed. This has happened many times. Also, patent holders have been known to make licenses available under more attractive terms precisely because the technology was being considered for an IETF standard. That kind of pressure/encouragement might well be more effective at making useful technology available to the Internet community than a blanket patent policy. Speaking as someone who has been involved in IETF for about 17 years now, by far the best way to ensure that IETF protocols to be safe for open source implementors is for open source implementors to participate in IETF working groups. IETF's policy of rough consensus means that every interested party has a strong voice when it comes to objecting to things that will hamper implementation or deployment. ___ Ietf mailing list Ietf@ietf.org https://www1.ietf.org/mailman/listinfo/ietf
Re: When is using patented technology appropriate?
Sam Hartman [EMAIL PROTECTED] writes: Simon == Simon Josefsson [EMAIL PROTECTED] writes: Simon Frank Ellermann [EMAIL PROTECTED] writes: Simon Josefsson wrote: I would even consider a requirement that in order to move beyond Proposed Standard, a protocol needs to have a free implementation available. Tricky, e.g. my BOCU-1 implementation is free in a certain sense, but I'm also sure that I don't have a license. Simon Do you refer to the IBM patent on BOCU? As far as I have Simon understood, IBM promised to grant a free patent license to Simon people who requested it, but people never received a Simon license despite requesting one. If this is accurate, I Simon think it is a good example of a technology that should not Simon be standardized and should not be promoted by the Simon community. It seems very unlikely to me that IBM would choose to assert such a patent against an implementation after having promised to give a free license. If you replace IBM with 'A Patent Troll', do you think the same holds? I think not. If the IETF is going to have a policy on this, I believe it is important for the policy to treat everyone the same. I think that BOCU is a relevant example to show that promises to give a patent license is not good enough. (That is assuming my understanding of the BOCU example is correct; I haven't implemented or tried to get a license myself, I have only read about others who have done so.) If even IBM cannot do it properly, we have reason to not assume that others will be able to do it. Especially those less supportive of the free software community. If we didn't know about the patent we would be happy to go use the technology. Yet somehow that we know about the patent and we have strong reason to suspect that we will never be bothered by the patent, we are unwilling to depend on the technology? That makes no sense to me. Agreed, it doesn't make sense. However, if somebody other than IBM proposes a technology and gives a patent license promise, I don't think we have a strong reason to suspect we will never be bothered by their patent. /Simon ___ Ietf mailing list Ietf@ietf.org https://www1.ietf.org/mailman/listinfo/ietf
Re: When is using patented technology appropriate?
On Tue, 23 Oct 2007, Sam Hartman wrote: However I feel there is something pathalogical going on in the open source community surrounding patents. People are willing to use technologies that probably have patents but are unwilling to use technologies that clearly have patents and that have a long track record of not particularly being enforced. I get worried when I see that spilling into the IETF. Past behaviour is not a predictor of future behaviour, e.g. GIF. Tony. -- f.a.n.finch [EMAIL PROTECTED] http://dotat.at/ SOUTHEAST ICELAND: NORTHERLY 5 AT FIRST IN EAST, OTHERWISE SOUTHEASTERLY 4 OR 5 INCREASING 6 OR 7. MODERATE OR ROUGH. RAIN LATER. GOOD, OCCASIONALLY MODERATE LATER. ___ Ietf mailing list Ietf@ietf.org https://www1.ietf.org/mailman/listinfo/ietf
Re: When is using patented technology appropriate?
Simon == Simon Josefsson [EMAIL PROTECTED] writes: Simon Sam Hartman [EMAIL PROTECTED] writes: Simon == Simon Josefsson [EMAIL PROTECTED] writes: Simon Frank Ellermann [EMAIL PROTECTED] writes: Simon Josefsson wrote: I would even consider a requirement that in order to move beyond Proposed Standard, a protocol needs to have a free implementation available. Tricky, e.g. my BOCU-1 implementation is free in a certain sense, but I'm also sure that I don't have a license. Simon Do you refer to the IBM patent on BOCU? As far as I have Simon understood, IBM promised to grant a free patent license to Simon people who requested it, but people never received a Simon license despite requesting one. If this is accurate, I Simon think it is a good example of a technology that should not Simon be standardized and should not be promoted by the Simon community. It seems very unlikely to me that IBM would choose to assert such a patent against an implementation after having promised to give a free license. Simon If you replace IBM with 'A Patent Troll', do you think the Simon same holds? I think that such behavior should be presumed not to be a patent troll. Patent trolls are not known forpromising to give away royalty-free licenses. Simon I think not. If the IETF is going to have a Simon policy on this, I believe it is important for the policy to Simon treat everyone the same. The IETf should treat everyone the same. However when we decide whether we are willing to implement using a patented technology, we as implementers consider a lot of factors. I think that the history of the patent and probably even the company needs to be considered there. ___ Ietf mailing list Ietf@ietf.org https://www1.ietf.org/mailman/listinfo/ietf
Re: When is using patented technology appropriate?
On 2007-10-25 04:30, Sam Hartman wrote: ... Simon If you replace IBM with 'A Patent Troll', do you think the Simon same holds? I think that such behavior should be presumed not to be a patent troll. Patent trolls are not known forpromising to give away royalty-free licenses. They are also, in general, known for *not* particpating in the standards process, precisely to avoid falling under patent disclosure requirements. As far as non-participants are concerned, nothing in our rules matters. Brian ___ Ietf mailing list Ietf@ietf.org https://www1.ietf.org/mailman/listinfo/ietf
Re: When is using patented technology appropriate?
On Thu, 25 Oct 2007 10:15:55 +1300 Brian E Carpenter [EMAIL PROTECTED] wrote: On 2007-10-25 04:30, Sam Hartman wrote: ... Simon If you replace IBM with 'A Patent Troll', do you think Simon the same holds?I think that such behavior should Simon be presumed not to be a patent troll. Patent trolls are not known forpromising to give away royalty-free licenses. They are also, in general, known for *not* particpating in the standards process, precisely to avoid falling under patent disclosure requirements. As far as non-participants are concerned, nothing in our rules matters. Right. Any IPR policy has to acknowledge the fact that relevant patents can be owned by non-troll non-participants. (Too many negatives there -- what I'm saying is that IETFers don't know of all patents in the space, and there are real patent owners who care about their patents, even though they aren't trolls.) --Steve Bellovin, http://www.cs.columbia.edu/~smb ___ Ietf mailing list Ietf@ietf.org https://www1.ietf.org/mailman/listinfo/ietf
RE: When is using patented technology appropriate?
Steven Bellovin wrote: Right. Any IPR policy has to acknowledge the fact that relevant patents can be owned by non-troll non-participants. (Too many negatives there -- what I'm saying is that IETFers don't know of all patents in the space, and there are real patent owners who care about their patents, even though they aren't trolls.) I agree, but I suggest that our new IPR policy ought to set expectations for how we deal procedurally with such outside encumbrances when discovered. The defensive termination provision in most contributors' IETF patent grants can also help to protect our specifications from trolls and some third-party patent owners, depending upon how those grants are worded. /Larry -Original Message- From: Steven M. Bellovin [mailto:[EMAIL PROTECTED] Sent: Wednesday, October 24, 2007 2:46 PM To: Brian E Carpenter Cc: Simon Josefsson; Sam Hartman; ietf@ietf.org Subject: Re: When is using patented technology appropriate? On Thu, 25 Oct 2007 10:15:55 +1300 Brian E Carpenter [EMAIL PROTECTED] wrote: On 2007-10-25 04:30, Sam Hartman wrote: ... Simon If you replace IBM with 'A Patent Troll', do you think Simon the same holds?I think that such behavior should Simon be presumed not to be a patent troll. Patent trolls are not known forpromising to give away royalty-free licenses. They are also, in general, known for *not* particpating in the standards process, precisely to avoid falling under patent disclosure requirements. As far as non-participants are concerned, nothing in our rules matters. Right. Any IPR policy has to acknowledge the fact that relevant patents can be owned by non-troll non-participants. (Too many negatives there -- what I'm saying is that IETFers don't know of all patents in the space, and there are real patent owners who care about their patents, even though they aren't trolls.) --Steve Bellovin, http://www.cs.columbia.edu/~smb ___ Ietf mailing list Ietf@ietf.org https://www1.ietf.org/mailman/listinfo/ietf ___ Ietf mailing list Ietf@ietf.org https://www1.ietf.org/mailman/listinfo/ietf
Re: When is using patented technology appropriate?
It seems to me that in some sense that disclosing a patent should not make us less willing to use something. This is especially true when the disclosing party is not obligated to make the disclosure. Disclosing a patent along with an implication that the patent will be enforced or that the patent is high value should make us less willing to use a technology. I'll even except that absent royalty-free licensing a typical patent disclosure has the implication of desire to enforce the patent. I think it is very dangerous to infer anything like desire to enforce the patent. These are situations where you actually have to read the specifics to know what it is going. That's why we already have strong encouragement to include license statements with IPR disclosures (see the declaration form, section VI). The availability of for-royalty patent licenses along side other types of licenses, as in the statement at http://www1.ietf.org/ietf/IPR/cisco-ipr-draft-ietf-ecrit-lost-06.txt may or may not change the calculus of a developer who intends to implement this. But it is clearly neither the same as a case where all licenses are royalty bearing nor the case where all licenses are free. Nor is it the same as a license where the maximum fee requested is guaranteed to be a percentage (and hence zero for free implementations). Again, speaking just for myself. regards, Ted PS. My apologies to my Cisco colleagues if I appear to be consistently using your declarations as examples. No harm intended. ___ Ietf mailing list Ietf@ietf.org https://www1.ietf.org/mailman/listinfo/ietf
Re: When is using patented technology appropriate?
Ted == Ted Hardie [EMAIL PROTECTED] writes: It seems to me that in some sense that disclosing a patent should not make us less willing to use something. This is especially true when the disclosing party is not obligated to make the disclosure. Disclosing a patent along with an implication that the patent will be enforced or that the patent is high value should make us less willing to use a technology. I'll even except that absent royalty-free licensing a typical patent disclosure has the implication of desire to enforce the patent. Ted I think it is very dangerous to infer anything like desire Ted to enforce the patent. These are situations where you Ted actually have to read the specifics to know what it is going. You are probably right. However I feel there is something pathalogical going on in the open source community surrounding patents. People are willing to use technologies that probably have patents but are unwilling to use technologies that clearly have patents and that have a long track record of not particularly being enforced. I get worried when I see that spilling into the IETF. Speaking for myself, --Sam ___ Ietf mailing list Ietf@ietf.org https://www1.ietf.org/mailman/listinfo/ietf
