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IETF Patent Policy

From: Donald E. Eastlake 3rd <dee3@torque.pothole.com>
Date: Wed, 03 Oct 2001 09:14:43 -0400
Message-Id: <200110031314.JAA0000032123@torque.pothole.com>
To: www-patentpolicy-comment@w3.org
cc: dee3@torque.pothole.com

There have been statements that the IETF requires Royalty Free
licensing before it "includes" patented technology in a standard.
This is obviously false. (However, I would like to make it clear that
I think the patent system, particularly the US Patent system as it
relates to software is a monster out of control.)

For example, the IETF does lots of standards of the form, how to send
Internet Protocol (IP) packets over X for various X technologies.
Should it refuse to do so because X is patented? Ethernet was patented
and the Internet probably wouldn't exist if IP had not been sent over
Ethernet.

Early IETF email security standards used RSA which was patented.
(Admittedly, the IETF used its barganing leverage to get the RSAREF
package released for royalty free use but that was only for limited
non-commercial applications.)

Of course the IETF prefers unrestricted / royalty free technoloy and
if it can't get that, technology with reasonable and non-discrimintory
licensing. And the IETF has changed many standards under development
to avoid patents or patent claims that were discovered or
announced. But there are many different ways in which patented
technology can be included in a standard, many different shades of
licensing, etc., and the IETF's current procedures carefully avoid
painting itself into a box if the use of some patented technology
turns out to be essential or advisable. For example, the IETF could
see it as being in its interest for there to be a good standard,
compatible with other IETF standards, for you to format messages sent
over some proprietary system that is licensed in an unreasonable
fashion.  That said, it is true that the W3C has a smaller range of
standards types, almost entirely at the application level, while the
IETF has to accomodate a much broader range.

The current IETF policy is stated in RFC 2026
<ftp://ftp.rfc-editor.org/in-notes/rfc2026.txt>, particularly section
10.  I have pasted the most relevant part of Section 10 at the end of
this message.

Thanks,
Donald

=====================================================================
 Donald E. Eastlake 3rd                      dee3@torque.pothole.com
 155 Beaver Street                                +1 508-634-2066(h)
 Milford, MA 01757 USA                            +1 508-261-5434(w)


[Note: The IESG is the Internet Engineering Steering Group which is
the body within the IETF which makes final standardization decisions.]


10.3.2. Standards Track Documents

   (A)  Where any patents, patent applications, or other proprietary
      rights are known, or claimed, with respect to any specification on
      the standards track, and brought to the attention of the IESG, the
      IESG shall not advance the specification without including in the
      document a note indicating the existence of such rights, or
      claimed rights.  Where implementations are required before
      advancement of a specification, only implementations that have, by
      statement of the implementors, taken adequate steps to comply with
      any such rights, or claimed rights, shall be considered for the
      purpose of showing the adequacy of the specification.
   (B)  The IESG disclaims any responsibility for identifying the
      existence of or for evaluating the applicability of any claimed
      copyrights, patents, patent applications, or other rights in the
      fulfilling of the its obligations under (A), and will take no
      position on the validity or scope of any such rights.
   (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.
      The Working Group proposing the use of the technology with respect
      to which the proprietary rights are claimed may assist the IETF
      Executive Director in this effort.  The results of this procedure
      shall not affect advancement of a specification along the
      standards track, except that the IESG may defer approval where a
      delay may facilitate the obtaining of such assurances.  The
      results will, however, be recorded by the IETF Executive Director,
      and made available.  The IESG may also direct that a summary of
      the results be included in any RFC published containing the
      specification.

10.3.3  Determination of Reasonable and Non-discriminatory Terms

   The IESG will not make any explicit determination that the assurance
   of reasonable and non-discriminatory terms for the use of a
   technology has been fulfilled in practice.  It will instead use the
   normal requirements for the advancement of Internet Standards to
   verify that the terms for use are reasonable.  If the two unrelated
   implementations of the specification that are required to advance
   from Proposed Standard to Draft Standard have been produced by
   different organizations or individuals or if the "significant
   implementation and successful operational experience" required to
   advance from Draft Standard to Standard has been achieved the
   assumption is that the terms must be reasonable and to some degree,
   non-discriminatory.  This assumption may be challenged during the
   Last-Call period.

10.4.  Notices

   (A)  Standards track documents shall include the following notice:

         "The IETF takes no position regarding the validity or scope of
         any intellectual property or other rights that might be claimed
         to  pertain to the implementation or use of the technology
         described in this document or the extent to which any license
         under such rights might or might not be available; neither does
         it represent that it has made any effort to identify any such
         rights.  Information on the IETF's procedures with respect to
         rights in standards-track and standards-related documentation
         can be found in BCP-11.  Copies of claims of rights made
         available for publication and any assurances of licenses to
         be made available, or the result of an attempt made
         to obtain a general license or permission for the use of such
         proprietary rights by implementors or users of this
         specification can be obtained from the IETF Secretariat."

   (B)  The IETF encourages all interested parties to bring to its
      attention, at the earliest possible time, the existence of any
      intellectual property rights pertaining to Internet Standards.
      For this purpose, each standards document shall include the
      following invitation:

         "The IETF invites any interested party to bring to its
         attention any copyrights, patents or patent applications, or
         other proprietary rights which may cover technology that may be
         required to practice this standard.  Please address the
         information to the IETF Executive Director."

   (C)  The following copyright notice and disclaimer shall be included
      in all ISOC standards-related documentation:

         "Copyright (C) The Internet Society (date). All Rights
         Reserved.

         This document and translations of it may be copied and
         furnished to others, and derivative works that comment on or
         otherwise explain it or assist in its implmentation may be
         prepared, copied, published and distributed, in whole or in
         part, without restriction of any kind, provided that the above
         copyright notice and this paragraph are included on all such
         copies and derivative works.  However, this document itself may
         not be modified in any way, such as by removing the copyright
         notice or references to the Internet Society or other Internet
         organizations, except as needed for the  purpose of developing
         Internet standards in which case the procedures for copyrights
         defined in the Internet Standards process must be followed, or
         as required to translate it into languages other than English.

         The limited permissions granted above are perpetual and will
         not be revoked by the Internet Society or its successors or
         assigns.

         This document and the information contained herein is provided
         on an "AS IS" basis and THE INTERNET SOCIETY AND THE INTERNET
         ENGINEERING TASK FORCE DISCLAIMS ALL WARRANTIES, EXPRESS OR
         IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY THAT THE USE
         OF THE INFORMATION HEREIN WILL NOT INFRINGE ANY RIGHTS OR ANY
         IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
         PARTICULAR PURPOSE."

   (D)  Where the IESG is aware at the time of publication of
      proprietary rights claimed with respect to a standards track
      document, or the technology described or referenced therein, such
      document shall contain the following notice:

         "The IETF has been notified of intellectual property rights
         claimed in regard to some or all of the specification contained
         in this document.  For more information consult the online list
         of claimed rights."
Received on Wednesday, 3 October 2001 09:16:46 GMT

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