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Harald Tveit Alvestrand | 1 Dec 2004 07:46
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Re: Feb 3-4, 2005 Geneva meeting / inc. IPR problems facing standards organizations


--On tirsdag, november 30, 2004 16:43:36 +0100 Brian E Carpenter 
<brc <at> zurich.ibm.com> wrote:

>
>> ----- Original Message -----
>> From: "James Love" <james.love <at> cptech.org>
>> To: <ipr-wg <at> ietf.org>
>> Sent: Thursday, November 25, 2004 5:53 PM
>> Subject: Feb 3-4, 2005 Geneva meeting / inc. IPR problems facing
>> standards organizations
>>
>>
>>
>>> There is some discussion within WIPO to address problems facing
>>> standards organizations like the IETF or w3c.  One proposal is for a
>>> mandatory disclosure of patent claims on proposed standards, ...
>
> Since that is weaker than the current IETF policy, I'm not sure why
> we need any help from WIPO.

if it's "mandatory" as in "binding on organizations that are not 
participating in the IETF process", it is a FAR stronger statement.

Not sure even WIPO can make that stick, however.
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Brian E Carpenter | 1 Dec 2004 11:35
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Re: Feb 3-4, 2005 Geneva meeting / inc. IPR problems facing standards organizations

Harald Tveit Alvestrand wrote:
> 
> 
> --On tirsdag, november 30, 2004 16:43:36 +0100 Brian E Carpenter 
> <brc <at> zurich.ibm.com> wrote:
> 
>>
>>> ----- Original Message -----
>>> From: "James Love" <james.love <at> cptech.org>
>>> To: <ipr-wg <at> ietf.org>
>>> Sent: Thursday, November 25, 2004 5:53 PM
>>> Subject: Feb 3-4, 2005 Geneva meeting / inc. IPR problems facing
>>> standards organizations
>>>
>>>
>>>
>>>> There is some discussion within WIPO to address problems facing
>>>> standards organizations like the IETF or w3c.  One proposal is for a
>>>> mandatory disclosure of patent claims on proposed standards, ...
>>
>>
>> Since that is weaker than the current IETF policy, I'm not sure why
>> we need any help from WIPO.
> 
> 
> if it's "mandatory" as in "binding on organizations that are not 
> participating in the IETF process", it is a FAR stronger statement.
> 
> Not sure even WIPO can make that stick, however.
(Continue reading)

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James Love | 1 Dec 2004 11:25

Re: Feb 3-4, 2005 Geneva meeting / inc. IPR problems facing standards organizations

Harald Tveit Alvestrand wrote:
>>>> There is some discussion within WIPO to address problems facing
>>>> standards organizations like the IETF or w3c.  One proposal is for a
>>>> mandatory disclosure of patent claims on proposed standards, ...
>>
>> Since that is weaker than the current IETF policy, I'm not sure why
>> we need any help from WIPO.
> 
> if it's "mandatory" as in "binding on organizations that are not 
> participating in the IETF process", it is a FAR stronger statement.
> 
> Not sure even WIPO can make that stick, however.

    The proposal is to create a mechanism, within the patent cooperation 
treaty (PCT).  One possible approach is that

(1)  the WIPO/PCT secretariat would receive requests from qualifying 
standards organizations to notice a standard.
(2)  The notice would call for disclosures of patent that are relevant 
to implementation of the standard,
(3)  Patent owners who failed to disclose would not be allowed to 
enforce patents against parties who were implementing the standard.
(4)  The 124 members of the PCT (see membership below), would agree to 
the provisions in (3).

The PCT could be amended to do this, if the key member states thought it 
was a good idea.  There is interest in this, but WIPO delegates are just 
begining to think about problems facing standards organizations.

There is also another avenue that can be followed concerning problems
(Continue reading)

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Scott Bradner | 1 Dec 2004 16:25
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Re: Feb 3-4, 2005 Geneva meeting / inc. IPR problems facing standards organizations

> (1)  the WIPO/PCT secretariat would receive requests from qualifying
> standards organizations to notice a standard.
> (2)  The notice would call for disclosures of patent that are relevant
> to implementation of the standard,
> (3)  Patent owners who failed to disclose would not be allowed to
> enforce patents against parties who were implementing the standard.
> (4)  The 124 members of the PCT (see membership below), would agree to
> the provisions in (3).

lots of issues pop up

1/ at what stage does the SDO "notice" a standard - if its only after
   the standard is done it is of limited use

2/ no matter when the notice - how does one deal with the fact that 
   in most standards organizations the work in progress and final
   standards are not openly availiabe?

3/ what is a "qualifying standards organization"?

4/ how will independent inventors be able to afford the time and 
   expense of checking all the standards

5/ how do they deal with the case where the IPR holder thinks the 
   patent covers more than others do

6/ what about prior art?

7/ what about unpublished patent applications?
(Continue reading)

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Russell McOrmond | 1 Dec 2004 15:31
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Re: Feb 3-4, 2005 Geneva meeting / inc. IPR problems facing standards organizations


On Wed, 1 Dec 2004, Harald Tveit Alvestrand wrote:

> if it's "mandatory" as in "binding on organizations that are not 
> participating in the IETF process", it is a FAR stronger statement.
> 
> Not sure even WIPO can make that stick, however.

  If a new WIPO patent treaty included a "fair use"  (fair dealings)
exception for the use of patented processes within recognized standards,
then the problems for standards groups would go away in those countries
that ratified these treaties.

My patent report http://www.flora.ca/patent2003/ included references to a 
relevant document:

Maureen A. O'rourke, "Toward a doctrine of fair use in patent law", 
Columbia law review, volume 100, No. 5 (June 2000)

--

-- 
 Russell McOrmond, Internet Consultant: <http://www.flora.ca/> 
 Code is Law: how software code regulates the activities of citizens,
 and acts similar to law.  How do we ensure transparency/accountability?  
 http://www.flora.ca/russell/drafts/code-is-law.html
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Larry J. Blunk | 1 Dec 2004 17:57
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Re: Feb 3-4, 2005 Geneva meeting / inc. IPR problems facing standards organizations

On Wednesday 01 December 2004 05:35, Brian E Carpenter wrote:
> Harald Tveit Alvestrand wrote:
> > --On tirsdag, november 30, 2004 16:43:36 +0100 Brian E Carpenter
> >
> > <brc <at> zurich.ibm.com> wrote:
> >>> ----- Original Message -----
> >>> From: "James Love" <james.love <at> cptech.org>
> >>> To: <ipr-wg <at> ietf.org>
> >>> Sent: Thursday, November 25, 2004 5:53 PM
> >>> Subject: Feb 3-4, 2005 Geneva meeting / inc. IPR problems facing
> >>> standards organizations
> >>>
> >>>> There is some discussion within WIPO to address problems facing
> >>>> standards organizations like the IETF or w3c.  One proposal is for a
> >>>> mandatory disclosure of patent claims on proposed standards, ...
> >>
> >> Since that is weaker than the current IETF policy, I'm not sure why
> >> we need any help from WIPO.
> >
> > if it's "mandatory" as in "binding on organizations that are not
> > participating in the IETF process", it is a FAR stronger statement.
> >
> > Not sure even WIPO can make that stick, however.
>
> I'm quite sure they can't, which was behind my comment. How can inventors
> be *required* to be aware of all proposed standards that might make use of
> their inventions? It's even less reasonable than a *requirement* to be
> aware of all prior art, and we know how well that works.
>
>     Brian
(Continue reading)

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Russell McOrmond | 1 Dec 2004 18:04
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Re: Feb 3-4, 2005 Geneva meeting / inc. IPR problems facing standards organizations


On Wed, 1 Dec 2004, Brian E Carpenter wrote:

> I'm quite sure they can't, which was behind my comment. How can inventors be
> *required* to be aware of all proposed standards that might make use of their
> inventions? It's even less reasonable than a *requirement* to be aware
> of all prior art, and we know how well that works.

  There should be a greater concern that standards bodies be "required by
law, otherwise claimed to be infringing" to be aware of all the obscure
and most often bogus claims in granted information process patents.

  I believe you are looking at the problem from the wrong direction.  
Standards aren't the problem, but largely illegitimate information process
patents slowing down the standards process is the problem.

  Attempts at enforcement of a patent against implementors of a standard
should result in the immediate thorough reexamination of the patent, at no
cost to the implementor or members of the standards body other than a
requirement that they participate in the process.

--

-- 
 Russell McOrmond, Internet Consultant: <http://www.flora.ca/> 
 Code is Law: how software code regulates the activities of citizens,
 and acts similar to law.  How do we ensure transparency/accountability?  
 http://www.flora.ca/russell/drafts/code-is-law.html
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Scott Bradner | 1 Dec 2004 22:51
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Re: Feb 3-4, 2005 Geneva meeting / inc. IPR problems facing standards organizations

>        Getting back to IETF policy and organizational participation
> requirements.  It seems to me there is no organizational requirement
> for disclosure of IPR which are known or believed to cover IETF
> documents as long as there are no individuals from
> that organization actively contributing to documents which are

s/contributing to/discuaaing/

> covered by said IPR.   At least that's how I read section 7 of
> RFC 3668.

slightly clearer but the same point

>       So, I don't think it's a question of whether organizations
> need to be aware of all proposed standards which may be
> covered by their IPR.  But rather should there be an organizational
> requirement for disclosure where there is awareness.   I realize
> the IETF places the emphasis on the individual rather than the
> organization (which is why WIPO might want to get involved).

its hard to do anything but the individual if you do not have
a orgizational membership basic model

Scott
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Brian E Carpenter | 2 Dec 2004 09:21
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Re: Feb 3-4, 2005 Geneva meeting / inc. IPR problems facing standards organizations

Scott Bradner wrote:
>>       Getting back to IETF policy and organizational participation
>>requirements.  It seems to me there is no organizational requirement
>>for disclosure of IPR which are known or believed to cover IETF
>>documents as long as there are no individuals from
>>that organization actively contributing to documents which are
> 
> 
> s/contributing to/discuaaing/
> 
> 
>>covered by said IPR.   At least that's how I read section 7 of
>>RFC 3668.
> 
> 
> slightly clearer but the same point
> 
> 
>>      So, I don't think it's a question of whether organizations
>>need to be aware of all proposed standards which may be
>>covered by their IPR.  But rather should there be an organizational
>>requirement for disclosure where there is awareness.   I realize
>>the IETF places the emphasis on the individual rather than the
>>organization (which is why WIPO might want to get involved).
> 
> 
> its hard to do anything but the individual if you do not have
> a orgizational membership basic model
>
(Continue reading)

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Brian E Carpenter | 2 Dec 2004 09:31
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Re: Feb 3-4, 2005 Geneva meeting / inc. IPR problems facing standards organizations

Russell McOrmond wrote:
> On Wed, 1 Dec 2004, Brian E Carpenter wrote:
> 
> 
>>I'm quite sure they can't, which was behind my comment. How can inventors be
>>*required* to be aware of all proposed standards that might make use of their
>>inventions? It's even less reasonable than a *requirement* to be aware
>>of all prior art, and we know how well that works.
> 
> 
>   There should be a greater concern that standards bodies be "required by
> law, otherwise claimed to be infringing" to be aware of all the obscure
> and most often bogus claims in granted information process patents.

Huh? How on earth can standards bodies be "required be aware"??? This
is a physical impossibility. The onus can only be put on patent holders.

>   I believe you are looking at the problem from the wrong direction.  
> Standards aren't the problem, but largely illegitimate information process
> patents slowing down the standards process is the problem.

Personally, I deal with current reality, which allow software patents
and patent farming. The IETF has to operate in this world. I'd love to
see the world change, but I don't think the WIPO proposal as described
here is going to change much of anything.

> 
>   Attempts at enforcement of a patent against implementors of a standard
> should result in the immediate thorough reexamination of the patent, at no
> cost to the implementor or members of the standards body other than a
(Continue reading)

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