Network Working Group S. Bradner
Internet-Draft Harvard U.
Editor March 2003
Intellectual Property Rights in IETF Technology
<draft-ietf-ipr-technology-rights-02.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. This memo updates RFC 2026 and with RFC XXXY, replaces RFC
10 of RFC 2026. [ note to RFC editor - replace XXXY with number of
IETF SUB ]
Portions Copyright (C) The Internet Society (2002)
1. Introduction
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It is becoming increasingly common for IETF working groups to have to
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 third 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 principles 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 IPR claim of the
participant, the participant's employer or others represented by
the participant (if any) that they believe would be 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
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intended to substantially modify or alter the IETF's current policy
toward IPR in the context of the IETF standards process. They 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. Readers are advised
to consult their own legal advisors if they would like a legal
interpretation of their rights or the rights of the IETF in any
contributions they make.
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, and each named co-contributor, is deemed to agree to
the following terms and conditions, on his/her own behalf, and on
behalf of the organizations the contributor represents (if any) when
submitting 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 personally and reasonably 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.
B. The contributor represents that there are no limits to the
contributor's ability to make the grants, acknowledgments and
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agreements above that are personally and reasonably 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.
(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 claims.
(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 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 royalty-free terms or, if that is
not available, under 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
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
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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. Note that this also covers the case
where multiple implementers have concluded that no licensing is
required. 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 will be added to all standards track RFCs by
the RFC Editor.
(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 IETF documents can be found in RFC XX.
[note to RFC Editor - replace XX with the number of this
document]
Copies of IPR statements made to the IETF Secretariat and any
assurances of licenses to be made available, or the result of
an attempt made to obtain a royalty-free 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."
(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 Secretariat at iesg-
secretary@ietf.org."
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5. Definitions
5.1 contribution: in the context of this memo, a contribution to the
IETF is any submission intended by the contributor for publication as
an Internet Draft or RFC and any statements made within the context
of an IETF process. Such statements include verbal statements in IETF
meetings, as well as written and electronic communications made at
any time or place, which are addressed to
o the IETF plenary session,
o any IETF working group or portion thereof,
o the IESG, or any member thereof on behalf of the IESG,
o the IAB or any member thereof on behalf of the IAB,
o any IETF mailing list, including the IETF list itself, any working
group or design team list, or any other list functioning under
IETF auspices,
o the RFC Editor or the Internet-Drafts function
5.2 IETF document: RFCs and Internet-Drafts.
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 that
includes IPR which meets the conditions in section 6.6 and that is
personally and reasonably 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 disclosure.
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Contributors must disclose IPR claims meeting the description in this
section, there are no exceptions to this rule.
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 third party
Under section 4(B) of this document third parties that have
information about IPR claims of others that may cover IETF
contributions are encouraged 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 third party realizes the connection. A
third 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 IPR disclosure is important because working groups need to
have as much information as they 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.
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.
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
IPR claims become personally and reasonably known to the IETF
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participant.
6.3 How must a disclosure be made?
IPR disclosures are 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 should list the numbers of any issued or published
patents and indicate whether the claim is based on unpublished patent
applications. The disclosure should also list the specific IETF
documents or activity affected. An Internet-Draft must be referenced
by specific version number. In addition, if an Internet-Draft
includes multiple parts and it is not reasonably apparent which part
of such Internet-Draft is alleged to be covered by the claims of a
disclosed patent or patent application, the discloser should identify
the sections of the Internet-Draft that are alleged to be so covered.
If a disclosure was made on the basis of a patent application then a
new disclosure must be made when the patent is granted or denied.
The new disclosure must include the patent number and, if the granted
patent differs from the application, must state any differences in
applicability to the IETF work.
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. The requirement for an IPR
disclosure is met by a blanket statement of the availability of
royalty-free licensing of any possible essential IPR.
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, an IPR
disclosure should include information about licensing of the IPR in
case implementation of the technology described in the final RFC is
judged to require a license. Specifically, it should indicate
whether, upon approval by the IETF 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 royalty-free or openly specified,
reasonable, non-discriminatory terms.
6.6 When is a disclosure required?
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Except for third party disclosures (which are encouraged under
section 6.1.3), disclosures are required whenever the IPR in question
is owned or licensed, directly or indirectly, by the individual or
his/her employer or sponsor (if any) or such persons otherwise have
the right to license or enforce, and a license under any claims of
the patent or patent application would be required to practice the
technology disclosed in the IETF document.
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 "personally and reasonably known" mean?
The phrase "personally and reasonably 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 the IETF contributor or participant (or his or her
represented organization, if any) to perform a patent search to find
applicable IPR.
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 personally and reasonably
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 personally and reasonably
known to the individual is a violation of IETF process.
9. Evaluating alternative technologies in IETF working groups
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In general, IETF working groups prefer technologies with no known IPR
claims or, for technologies with claims against them, an offer of
royalty-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.
Over the last few years the IETF has adopted stricter requirements
for some security technologies. It has become common to have a
mandatory-to-implement security technology in IETF technology
specifications. This is to ensure that there will be at least one
common security technology present in all implementations of such a
specification that can be use in all cases. This does not limit the
specification from including other security technologies, the use of
which could be negotiated between implementations. An IETF consensus
has developed that no mandatory-to-implement security should be
specified in an IETF specification unless it has no known IPR claims
against it or a royalty-free license is available to implementers of
the specification unless there is a very good reason to do so. This
limitation does not extend to other security technologies in the same
specification if they are not listed as mandatory-to- implement.
It should also be noted that the absence of IPR disclosures is not
the same thing as the knowledge that there will be no IPR claims in
the future. People or organizations not currently involved in the
IETF. People or organizations that 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.
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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
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 disclosures must be
submitted as described in section 6. Specific IPR disclosures should
not be in the affected documents because the reader could 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 and disclosures
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
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security with IPR procedures.
14. References
14.1 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
Procedures", RFC 2518, September 1998
[IETF SUB] work in progress: draft-iprwg-submission-00.txt
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 (2003). 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
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
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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)
version 00 to version 01
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" .br sec 8
- add "or other factors"
sec 14 - redo security considerations
sec 15 - added acknowledgements
sec 18 - added change log
version 01 to version 02
fix miscellaneous typos throughout document
swap personally and reasonably
change "IPR claim" to "IPR disclosure" a number of places
abstract - note update of rfc 2026
sec 1 - remove ISOC
sec 1(c) - reword - remove implication disclose of 3rd party IPR
sec 2.2.1 - reword - remove 3rd party IPR holders
sec 3 (C) - added royalty-free - removed "standards track"
remove text about implementations did not add "implicit"
because that is just what the IESG is doing remove "openly
specified"
sec 3.1 - added note about no licensing case
sec 4 - change so RFC Editor adds IPR statements tweak 4(A) so
4(C) could be removed & make it generic to IETF documents
sec 5.1 & 5.2 - included definitions from copyright ID
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sec 6.1.1 - last sentence - reword
sec 6.2.1 - append sec 6.2.3
sec 6.2.2 - reword
sec 6.3.1 - tweak wording
sec 6.4 - replace - add royalty-free add granted patent
applications
sec 6.5 1st pp - replace - add royalty-free remove example
classes
sec 6.6 - replace
sec 7 - tweak last sentence
sec 9 - tweak wording add security RF requirement
sec 14.2 - remove unneeded references
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