Network Working Group S. Bradner
Internet-Draft Harvard U.
Editor
February 2002
Intellectual Property Rights in IETF Technology
<draft-ietf-ipr-technology-rights-01.txt>
Status of this Memo
This document is an Internet-Draft and is subject to all provisions
of Section 10 of RFC 2026.
Internet-Drafts are working documents of the Internet Engineering
Task Force (IETF), its areas, and its working groups. Note that
other groups may also distribute working documents as Internet-
Drafts.
Internet-Drafts are draft documents valid for a maximum of six months
and may be updated, replaced, or obsoleted by other documents at any
time. It is inappropriate to use Internet- Drafts as reference
material or to cite them other than as "work in progress."
The list of current Internet-Drafts can be accessed at
http://www.ietf.org/ietf/1id-abstracts.txt
The list of Internet-Draft Shadow Directories can be accessed at
http://www.ietf.org/shadow.html
Abstract
The IETF policies about intellectual property rights (IPR), such as
patent rights, claimed relative to technologies developed in the IETF
are designed to ensure that IETF working groups and participants have
as complete information about any IPR constraints on a technical
proposal as possible. The policies are also intended to benefit the
Internet community and the public at large, while respecting the
legitimate rights of IPR holders. This memo details the IETF
policies concerning IPR related to technology worked on within the
IETF. It also describes the objectives that the policies are designed
to meet.
Portions Copyright (C) The Internet Society (2002)
1. Introduction
It is becoming increasingly common for IETF working groups to have to
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deal with claims of intellectual property rights, such as patent
rights, with regards to technology under discussion in the working
group. These claims can come at any point in the IETF process from
before the first Internet Draft has been submitted to after a RFC has
been published and the working group has been closed down. The
claims can come from people submitting technical proposals as
Internet Drafts, on mailing lists or at meetings, from other people
participating in the working group or from 3rd parties who find out
that the work is going or has gone on. The claims can be based on
granted patents or on patent applications. In some cases IPR claims
can be disingenuous, made to affect the standards process rather than
to inform.
RFC 2026 section 10 established three basic principals regarding the
IETF dealing with claims of intellectual property rights:
a/ the IETF will make no determination about the validity of any
particular IPR claim
b/ the IETF following normal processes can decide to use technology
for which IPR claims have been made if it decides that such a use
is warranted
c/ in order for the working group and the rest of the IETF to have
the information needed to make an informed decision about the use
of a particular technology, all those contributing to, and/or
otherwise participating in, the working group's discussions
(whether in person, or electronically via email, or via other
means) must disclose the existence of any patent claim that they
believe is necessary to implement the technology required by the
specific I-Ds or RFCs under discussion by the working group,
subject to the reasonable and personal knowledge of the person
making the disclosure (no patent search is required).
In the years since RFC 2026 was published there have been a number of
times when the exact intent of Section 10 has been the subject of
vigorous debate within the IETF community. The aim of this document
is to clarify various ambiguities in Section 10 of [RFC 2026] that
led to these debates and to amplify the policy in order to clarify
what the IETF is, or should be, doing.
Section 2, 3 and 4 of this document address the intellectual property
issues previously covered by Section 10 of RFC 2026. Section 5
defines the terms used in this memo, and sections 6 thru 12 then
explain the rationale for these provisions, including some of the
clarifications that have been understood since the adoption of RFC
2026. The rules and procedures set out in this document are not
intended to substantially modify or alter IETF's or ISOC's current
policy toward IPR in the context of the IETF standards process. They
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are intended to clarify and fill in procedural gaps.
A companion document [IETF SUB] deals with rights (such as copyrights
and trademarks) in the documents that are submitted to the IETF,
including the right of IETF and its participants to publish and
create derivative works of those documents. This document is not
intended to address those issues.
This document is not intended as legal advice. If you would like a
legal interpretation of your rights or the rights of the IETF in any
contributions you make, you are advised to consult your own legal
advisor
2. Contributions in the IETF
2.1. General Policy
In all matters of intellectual property rights, the intent is to
benefit the Internet community and the public at large, while
respecting the legitimate rights of others.
2.2. Rights and Permissions
2.2.1. All Contributions
By submission of a contribution, each person actually submitting the
contribution is deemed to agree to the following terms and conditions
on their own behalf, on behalf of the organizations (if any) the
contributor represents when submitting the contribution and on behalf
of the owners of any intellectual property rights claimed in the
contribution. Where a submission identifies contributors in addition
to the contributor(s) who provide the actual submission, the actual
submitter(s) represent that each other named contributor was made
aware of and agreed to accept the same terms and conditions on their
own behalf, on behalf of any organizations s/he may represent and any
known owner of any intellectual property rights in the contribution.
If the contribution is an Internet Draft this agreement must be
acknowledged by including in the header of the contribution one of
the statements in section 3.2 of [IETF SUB].
A. The contributor represents that he or she has disclosed the
existence of any and all intellectual property rights which cover
or may cover the technology, specifications or standards described
in the contribution that (1) are owned, controlled or enforceable
by the contributor or his or her employer, or any affiliate
thereof, and (2) are reasonably and personally known to the
contributor. The contributor does not represent that he or she
personally knows of all potentially pertinent intellectual
property rights owned or claimed by the his or her employer (if
any) or by third parties.
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B. The contributor represents that there are no limits to the
contributor's ability to make the grants acknowledgments and
agreements above that are reasonably and personally known to the
contributor.
3. IETF Actions
(A) When any intellectual property are known, or claimed, with
respect to any technology, specification, or standard described in
an IETF document , and such intellectual property rights are
brought to the attention of the IESG, the IESG shall not publish
the IETF document without including in the document a note
indicating the existence of such intellectual property rights, or
claimed intellectual property rights. Where implementations are
required before advancement of a standards track specification,
only implementations that have, by statement of the implementers,
taken such intellectual property rights into account 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
IPR to any IETF technology, specification or standard, and will
take no position on the validity or scope of any such intellectual
property rights.
(C) Where the IESG has been informed of claimed intellectual
property rights under (A), the IETF Executive Director shall
request from the claimant of such rights, a written assurance that
upon approval by the IESG of the relevant Internet standards track
specification(s), all persons will be able to obtain the right to
implement, use, distribute and exercise other rights with respect
to an Implementing Technology under openly specified, reasonable,
non-discriminatory terms unless such a statement has already been
submitted. The Working Group proposing the use of the technology
with respect to which the intellectual property rights are claimed
may assist the IETF Executive Director in this effort. The
results of this procedure shall not, in themselves, block
advancement of a specification along the standards track. A
working group may take into consideration the results of this
procedure in evaluating the technology and the IESG may defer
approval when a delay may facilitate obtaining such assurances.
The results will, however, be recorded by the IETF Executive
Director, and be made available. The IESG may also direct that a
summary of the results be placed on-line.
3.1 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 an
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Implementing 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 IESG will presume that the terms are reasonable and to some
degree, non- discriminatory. This presumption may be challenged at
any time, including during the Last-Call period by sending email to
the IESG.
4. Notices to be included in all contributions for publication
The following notices should be included in all submissions for
publication as an Internet Draft.
(A) Disclaimer of validity:
"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; nor does it represent that
it has made any independent 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-XX.
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 implementers or users of this
specification can be obtained from the IETF on-line IPR repository
at http://www.ietf.org/ipr or 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
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information to the IETF Secretariat at iesg-
secretary@ietf.org."
(C) Where the IESG has been made aware at the time of publication of
intellectual property rights claimed with respect to an IETF
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 at http://www.ietf.org/ipr."
5. Definitions
5.1 contribution: See [RFC SUB] section 4.1.
5.2 IETF document: See [RFC SUB] sec 4.4.
5.3 IPR or intellectual property rights: means any proprietary,
intellectual or industrial property rights, including, but not
limited to, patent, copyright, trade secret, design, utility model,
invention registration, database and data rights, whether such rights
arise from a registration or renewal thereof, or an application
therefore, in each case anywhere in the world.
5.4 Implementing Technology: means a technology which implements an
IETF specification or standard.
6. Disclosures
This section discusses who must make disclosures, how to make a
disclosure, what a disclosure must include and when disclosures must
be made.
6.1 Who must make a disclosure?
6.1.1 IPR claimed by contributors to the IETF
Anyone who contributes text, ideas, or technology to the IETF which
includes IPR that meets the conditions in section 6.6 and which is
reasonably and personally known to the contributor must disclose the
IPR.
This requirement specifically includes contributions that are made by
any means including electronic or spoken comments. A disclosure
should also be made if the revised contribution negates a previous
IPR claim.
There is no situation where IPR claim meeting the description in this
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section does not have to be disclosed.
6.1.2. IPR claimed in contributions by others
Anyone who is participating in an IETF discussion about someone
else's contribution which the individual believes includes IPR
meeting the conditions of section 6.6 must make an IPR disclosure.
Failure to provide such a disclosure is subject to the restrictions
described in section 8.
6.1.3. IPR claims known by a 3rd party
Under section 3(B) of this document 3rd parties that have information
about possible IPR claims related to IETF contributions are invited
to notify the IETF by sending an email message to iesg-
secretary@ietf.org. Such a notice should be sent as soon as possible
after the 3rd party realizes the connection. A 3rd party is defined
as someone who knows of IPR claims but who does not meet the
conditions in section 6.6.
6.2. The timing of providing disclosure
Timely notification of IPR claims is important because working groups
need to have as much information as it can while they are evaluating
alternative solutions.
6.2.1 Timing of disclosure about a contribution described in section
6.1.1
The person or the organization which claims the IPR must submit an
IPR disclosure at the same time that the contribution is made unless
there is already a disclosure on file which will cover the claim and
the new contribution. For example, if the contribution is an update
to one for which an IPR disclosure has already been made and the
applicability of the disclosure is not changed by the new
contribution, then no new disclosure is required. But if the
contribution is a new one or is one which changes an existing
contribution such that the revised contribution would be covered by
new or different IPR claims then a disclosure must be made.
6.2.2 Timing of disclosure about a contribution described in section
6.1.2
The disclosure must be made as soon as reasonably possible after the
realization.
6.2.3 Timing of disclosures based on new knowledge
If a contributor learns of IPR claims that meet the requirements of
section 6.6, for example a new patent application or the discovery of
a relevant patent in a patent portfolio, after the submission of a
contribution, a disclosure must be made by the contributor or the IPR
claimant as soon as reasonably possible after learning of the IPR
claim.
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6.3 How must a disclosure be made?
Disclosure of IPR claims is made by sending an email message to iesg-
secretary@ietf.org. It is also a good idea to send a copy of the
disclosure to the mailing list of the relevant working group.
6.4 What must be in a disclosure?
The disclosure must be as specific as reasonably possible both in the
IPR claim that is being made and as to the IETF contributions to
which the claim applies. The disclosure should list the registration
numbers of any patents and the file numbers of any patent
applications which instantiate the IPR claims being made. If the
claim is based on unpublished patent applications then that should be
stated. The disclosure should also list the specific IETF documents
or activity affected and what sections of any documents are affected.
(SHOULD WE PUT UP A DISCLOSURE TEMPLATE?)
Note that the requirement for an IPR disclosure is not satisfied by
the inclusion of a blanket statement of possible IPR on every
contribution. This is the case because the aim of the disclosure
requirement is to provide information about specific IPR claims
against specific technology under discussion in the IETF. The
requirement is also not satisfied by a blanket statement of
willingness to license all potential IPR under fair and non-
discriminatory terms for the same reason.
6.5 What rights must be detailed in a disclosure?
Since IPR disclosures will be used by IETF working groups during
their evaluation of alternative technical solutions it is desirable,
though not required, that an IPR disclosure include information about
licensing of the IPR in case implementation of the technology
described in the final RFC is judged to require a license. It should
be noted that disclosures without licensing statements are likely to
discourage a working group from adopting the technology.
The following are examples of licensing terms used in past
disclosures to the IETF. These examples are provided for information
and are not meant to recommend any of these particular terms.
a/ Free License: The IPR claimant will grant any applicant a non-
exclusive, worldwide, perpetual, irrevocable, royalty-free license
to make, use, sell, import and exercise all other rights with
respect to products or processes covered by the listed IPR. The
terms of this license are available for review on the IPR
claimant's web site.
b/ Restricted open license: The IPR claimant offers a Free License
to the IPR under certain constraints. Constraints that have been
seen in the past include a restriction of the free licenses to
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only cover implementations of a specific IETF RFC or that limit
the Free Licenses to people or organizations who do not try to
limit the ability IPR claimant to implement the same specific RFC
because of other IPR claims. See [RFC 1822] and [RFC 1988] for
examples.
c/ fair and non discriminatory terms: The IPR claimant offers to
license the technology under fair and non-discriminatory terms.
d/ a refusal to license: The IPR claimant will refuse to license the
technology.
6.6 When is a disclosure required?
Disclosures are required whenever enforcement of the IPR claim in
question would directly or indirectly benefit the individual or their
employer or sponsor (if any) and where enforcement of the claimed IPR
would have any effect on the ability to implement a technology under
discussion in the IETF.
6.7 Call for IPR disclosures
Notwithstanding the above, an explicit "Call for IPR disclosures"
must accompany a working group last call (if a working group Last-
Call is used to judge working group consensus - see [RFC 2418]
section 7.4) and an IETF Last-Call (See [RFC 2026] section 6.1.2.)
where one is issued. This "Call for IPR disclosures" is used to
request that anyone who knows of relevant IPR let the Working Group
or IESG (whichever issued the Last-Call) about the IPR.
7. What does "reasonably and personally known" mean?
The phrase "reasonably and personally known" is used above. It
should be read to refer to something the individual knows personally
or, because of the job the individual holds, would reasonably be
expected to know. This wording is used to indicate that an
organization cannot purposely keep an individual in the dark about
patents or patent applications just to avoid the disclosure
requirement. But this requirement should not be interpreted as
requiring an organization to perform a patent search every time one
of its employees submits an Internet Draft or participates in a
working group discussion.
8. Failure to provide notice
There are cases where individuals are not permitted by their
employers or by other factors to disclose the existence or substance
of patent applications or other IPR claims. Since disclosure is
required for anyone submitting documents or participating in IETF
discussions, a person who does not disclose IPR claims for this, or
any other reason, must not participate in these IETF activities with
respect to technologies that he or she reasonably and personally
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knows to be covered by an IPR claim which he or she is not permitted
to disclose. Participating in IETF discussions about a technology
without disclosing relevant IPR that is reasonably and personally
known to the individual is a violation of IETF process.
9. Evaluating alternative technologies in an IETF working group
In general, it can be assumed that IETF working groups will prefer
technologies with no known IPR claims or, for technologies with
claims, an offer of free licensing. But IETF working groups have the
discretion to adopt technology with a commitment of fair and non-
discriminatory terms, or even with no licensing commitment, if they
feel that this technology is superior enough to alternatives with
fewer IPR claims or free licensing to outweigh the potential cost of
the licenses.
It should also be noted that the absence of IPR claims is not the
same thing as the knowledge that there will be no such claims in the
future. People or organizations not currently involved in the IETF
or organizations who discover IPR they feel to be relevant in their
patent portfolios can make IPR claims at any time.
It should also be noted that the validity and enforceability of any
IPR may be challenged for legitimate reasons, and the mere existence
of an IPR claim should not automatically be taken to mean that the
underlying IPR is valid and enforceable. Although the IETF can make
no actual determination of validity or applicability of any
particular IPR claim, it is reasonable that a working group will rely
on their own opinions of the applicability or validity of
intellectual property rights in their evaluation of alternative
technologies.
10. Change control for technologies
The IETF must have change control over the technology described in
any standards track documents in order to fix problems that may be
discovered or to produce other derivative works. Submissions to the
IETF in which the submitters do not grant change control to the IETF
must include the appropriate Internet Draft statement from [IETF SUB]
section 3.2.
In some cases the developer of patented or otherwise controlled
technology may decide to hand over to the IETF the right to evolve
the technology (a.k.a "change control"). The implementation of an
agreement between the IETF and the developer of the technology can be
complex. (See [RFC 1790] and [RFC 2339] for examples.)
Note that an IETF standards track document can make normative
reference to proprietary technology in some cases, for example, when
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making parameter assignments or encapsulations. (e.g., "parameter
value 1234 refers to proprietary technology A" or "proprietary
technology B can be encapsulated using the techniques described in
RFC XYZ.")
11. Licensing requirements to advance standards track documents
[RFC 2026] section 4.1.2 states: "If patented or otherwise controlled
technology is required for implementation, the separate
implementations must also have resulted from separate exercise of the
licensing process." A key word in this text is "required." The mere
existence of an IPR claim does not necessarily mean that licenses are
actually required in order to implement the technology. Section
3.3.3 of this document should be taken to cover the case where there
are multiple implementations and but none of the implementers have
felt that they needed to license the technology and there have are no
indications that the IPR claimant will try to enforce its claim.
12. Mention of IPR claims in IETF documents
Submissions to the IETF where there are known IPR claims must include
the appropriate text from section 4 above. They should not contain
any mention of specific claims. All specific IPR claims must be
submitted as described in section 6. Specific IPR claims should not
be in the affected documents because the reader can be mislead. The
inclusion of a particular IPR claim in an IETF document could be
interpreted to mean that the IETF has formed an opinion on the
validity of the IPR claim. The reader could also be mislead to think
that the included IPR claims are the only IPR claims the IETF has
received concerning the document. Readers should always refer to the
on-line web page to get a full list of IPR claims received by the
IETF.
13. Security Considerations
This memo relates to IETF process, not any particular technology.
There are security considerations when adopting any technology,
whether IPR- protected or not. A working group should take those
security considerations into account as one part of evaluating the
technology, just as IPR is one part, but they are not issues of
security with IPR procedures.
14. References
15.1 Normative references
[RFC 2026] Bradner, S. (ed), "The Internet Standards Process --
Revision 3", RFC 2026, October 1996
[RFC 2418] Bradner, S. (ed), "Working Group Guidelines and
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Procedures", RFC 2518, September 1998
[IETF SUB] work in progress: draft-iprwg-submission-00.txt
14.2 Informative references
[RFC 1790] Cerf, V., "An Agreement between the Internet Society and
Sun Microsystems, Inc. in the Matter of ONC RPC and XDR
Protocols", RFC 1790, April 1995
[RFC 1822] Lowe, J., "A Grant of Rights to Use a Specific IBM patent
with Photuris", RFC 1822, August 1995
[1988] McAnally, G., D. Gilbert, J. Flick, "Conditional Grant of
Rights to Specific Hewlett-Packard Patents In Conjunction With the
Internet Engineering Task Force's Internet-Standard Network
Management Framework", RFC 1988, August 1996
[RFC 2339] The Internet Society, Sun Microsystems, "An Agreement
Between the Internet Society, the IETF, and Sun Microsystems, Inc.
in the matter of NFS V.4 Protocols"
15. Acknowledgements
The editor would like to acknowledge the help of the IETF ipr Working
Group and, in particular the help of Jorge Contreras of Hale and Dorr
for his careful legal reviews of this and other IETF IPR-related and
process documents. The editor would also like to thank Valerie See
for her extensive comments and suggestions.
16. Editors Address
Scott Bradner
Harvard University
29 Oxford St.
Cambridge MA, 02138
sob@harvard.edu +1 617 495 3864
17. Full copyright statement:
Copyright (C) The Internet Society (2002). Except as set forth
below, authors retain all their rights.
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 implementation 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
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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 rights
in submissions 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 CONTRIBUTOR, THE ORGANIZATION HE/S HE
REPRESENTS (IF ANY), THE INTERNET SOCIETY AND THE INTERNET
ENGINEERING TASK FORCE DISCLAIM 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.
18. change log
(note to RFC Editor - remove this section prior to publication)
sec 1 b - add "following normal processes"
sec 1 c - reword
sec 2.2.1 - add "if the contribution is an Internet Draft"
sec 6 - largely reworked
sec 6.7 - added call for IPR with WG & IETF last calls
sec 7 - add "or participates in a working group discussion"
sec 8 - add "or other factors"
sec 14 - redo security considerations
sec 15 - added acknowledgements
sec 18 - added change log
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