Network Working Group S. Bradner
Internet-Draft Harvard U.
Editor March 2003
Intellectual Property Rights in IETF Technology
<draft-ietf-ipr-technology-rights-03.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, relative to technologies developed in the IETF are
designed to ensure that IETF working groups and participants have as
much 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 Section 10 of
RFC 2026. [note to RFC editor - replace XXXY with number of IETF SUB]
Copyright (C) The Internet Society (2003)
1. Introduction
In the years since RFC 2026 was published there have been a number of
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times when the exact intent of Section 10, the section which deals
with IPR disclosures has been the subject of vigorous debate within
the IETF community. This is because it is becoming increasingly
common for IETF working groups to have to deal with claims of
intellectual property rights (IPR), such as patent rights, with
regards to technology under discussion in the working group. The aim
of this ID 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.
IPR claims can: come at any point in the IETF process e.g. before the
first Internet-Draft has been submitted, prior to RFC publication, or
after an RFC has been published and the working group has been closed
down; 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; be based on granted patents or
on patent applications, and in some cases be disingenuous, i.e. 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 disclosures 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 the working
group's discussions must disclose the existence of any IPR claim
that covers the technology under discussion. This applies to both
contributors and other participants, and applies whether they
contribute in person, via email or by other means. The requirement
covers all IPR of the contributor, the contributor's employer,
sponsor, or others represented by the contributors, that is
reasonably and personally known to the person submitting the
disclosure. No patent search is required.
Sections 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 document, and sections 6 thru 12
then explain the rationale for these provisions, including some of
the clarifications that have been made since the adoption of RFC
2026. The rules and procedures set out in this document are not
intended to modify or alter the IETF's current policy toward IPR in
the context of the IETF standards process. They are intended to
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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 or 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 made all disclosures
required by Section 6.1.1 of this document.
B. The Contributor represents that there are no limits to the
Contributor's ability to make the grants, acknowledgments and
agreements herein that are personally and reasonably known to the
Contributor.
3. IETF Actions
(A) When any intellectual property is disclosed, with respect to any
technology, specification, or standard described in an IETF
document in the manner set forth in sec 6 of this document, the
IESG shall require that the document has a note indicating the
existence of such claimed intellectual property rights.
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(B) The IESG disclaims any responsibility for identifying the
existence of or for evaluating the applicability of any IPR,
disclosed or otherwise, 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 intellectual property rights have been disclosed as
provided in Section 6 of this document, the IETF Executive
Director shall request from the discloser of such rights, a
written assurance that upon approval by the IESG for publication
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 Implementing Technology under one of the
licensing options specified in section 6.5 below 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 disclosed may assist the IETF Executive
Director in this effort.
The results of this procedure shall not, in themselves, block
advancement of a specification or document 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 online.
3.1 No 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 apply the normal requirements for the advancement of Internet
Standards. 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. 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. Notice to be included in RFCs
The following notice will be added by the RFC Editor to all standards
track RFCs and to all other RFCs for which an IPR disclosure has been
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received.
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 and RFC XY. [note to RFC
Editor - replace XX with the number of this document and replace
XY with number of IETF SUB.]
Copies of IPR disclosures made to the IETF Secretariat 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/.
The IETF invites any interested party to bring to its attention
any copyrights, patents or patent applications, or other
proprietary rights that may cover technology that may be required
to implement this standard. Please address the information to the
IETF at ietf-ipr@ietf.org."
5. Definitions
"Contribution": in the context of this document, a contribution to the
IETF is any submission intended by the contributor for publication as
an Internet-Draft, RFC or any statements made within the context of
an IETF process. Such statements include oral 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
Statements made outside of an IETF meeting, mailing list or other
function, that are clearly not intended to be input to an IETF
activity, group, or function, are not contributions in the context of
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this memo.
"Contributors": individuals submitting Contributions
"IETF Document": RFCs and Internet-Drafts.
"IPR" or "intellectual property rights": means any proprietary,
intellectual or industrial property rights that may Cover an
Implementing Technology, including, but not limited to, patent,
copyright, 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.
"Implementing Technology": means a technology that implements an IETF
specification or standard.
"Reasonably and personally known": should be read to refer to something
an 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.
"Covers" or "Covered" mean that a valid claim of a patent or a patent
application in any jurisdiction or a protected claim, or any other
intellectual property right, would be infringed by the exercise of a
right (e.g., making, using, selling, importing, distribution,
copying, etc)with respect to an Implementing Technology.
6. IPR Disclosures
This section discusses who must make IPR disclosures, how to make an
IPR disclosure, what an IPR disclosure must include and when IPR
disclosures must be made.
6.1 Who must make an IPR disclosure?
6.1.1 IPR disclosures by Contributors to the IETF
Any Contributor who reasonably and personally knows of IPR meeting
the conditions of Section 6.6 which the Contributor believes to Cover
his or her Contribution, or which the Contributor reasonably and
personally knows his or her employer or sponsor intends to enforce
against Implementing Technologies based on such Contribution, must
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make a disclosure in accordance with this Section 6.
This requirement specifically includes Contributions that are made by
any means including electronic or spoken comments. An IPR disclosure
should also be made if a revised Contribution negates a previous IPR
disclosure.
Contributors must disclose IPR meeting the description in this
section; there are no exceptions to this rule.
6.1.2. IPR in Contributions by others
Any individual participating in an IETF discussion who reasonably and
personally knows of IPR meeting the conditions of Section 6.6 which
the individual believes to Cover a Contribution made by another
person, or which the Contributor reasonably and personally knows his
or her employer or sponsor intends to enforce against Implementing
Technologies based on such Contribution, must make a disclosure in
accordance with this Section 6.
6.1.3. IPR known by a third party
If a person has information about IPR that may cover IETF
Contributions, and such IPR does not meet the requirements of Section
6.6 as to such person, such persons are encouraged to notify the IETF
by sending an email message to ietf-ipr@ietf.org. Such a notice
should be sent as soon as possible after the person realizes the
connection.
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 Contributor or his or her employer or sponsor (if any) or other
organization holding the rights to IPR, must submit an IPR disclosure
as soon as reasonably possible after the Contribution is made unless
there is already an IETF IPR disclosure on file that covers the
Contribution. For example, if the Contribution is an update to a
Contribution 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 that 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
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a relevant patent in a patent portfolio, after the submission of a
contribution, a disclosure must be made by the Contributor or his
employer or sponsor or other organization holding rights in the IPR
as soon as reasonably possible after the IPR becomes reasonably and
personally known to the Contributor.
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 becomes reasonably and personally known to the IETF participant.
6.3 How must a disclosure be made?
IPR disclosures are made by following the instructions at
http://www.ietf.org/ipr-instructions.
6.4 What must be in a disclosure?
The disclosure must list the numbers of any issued or published
patents or indicate that the claim is based on unpublished patent
applications. The disclosure must 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 IPR in
question, 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, has been
abandoned, or when the applicant has determined not to prosecute the
application further. 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 submission 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 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. However, the requirement for an IPR disclosure is
satisfied by a blanket statement of the IPR discloser's willingness
to license all its potential IPR meeting the requirements of section
6.6 to implementers of an IETF specification on a royalty- free basis
and other fair and non-discriminatory terms.
6.5 What rights must be detailed in a disclosure?
Since IPR disclosures will be used by IETF working groups during
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their evaluation of alternative technical solutions, an IPR
disclosure should include information about licensing of the IPR in
case Implementing Technologies require a license. Specifically, it
should indicate whether, upon approval by the IESG for publication as
RFCs of the relevant Internet 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 a) under a
royalty-free and otherwise reasonable and non-discriminatory license,
or b) under a license that contains reasonable and non-discriminatory
terms and conditions, including a reasonable royalty, or c) without
the need to obtain a license from the IPR owner.
6.6 Interest in IPR mandating disclosures
IPR disclosures are required with respect to IPR that is owned or
licensed, directly or indirectly, by the individual or his/her
employer or sponsor (if any) or that such persons otherwise have the
right to license or enforce.
7. 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. Since disclosure is required
for anyone submitting documents or contributing to IETF discussions,
a person who does not disclose IPR for this, or any other reason,
must not contribute to these IETF activities with respect to
technologies that he or she reasonably and personally knows to be
Covered by IPR which he or she is not permitted to disclose.
Contributing to IETF discussions about a technology without making
required IPR disclosures is a violation of IETF process.
8. Evaluating alternative technologies in IETF working groups
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
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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.
9. 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. Contributions to
the IETF in which the Contributors do not grant change control to the
IETF must include the Internet-Draft statement which does not include
the right to make derivative works 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
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.")
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10. 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 disclosed IPR 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 they have are no
indications that any IPR claimant(s) will try to enforce their
claims.
11. Mention of IPR claims in IETF documents
Submissions to the IETF where there are known IPR disclosures should
not contain any mention of specific disclosures. 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 misled. The inclusion of particular IPR disclosure
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 disclosures are the
only IPR disclosures the IETF has received concerning the document.
Readers should always refer to the on-line web page to get a full
list of IPR disclosures received by the IETF.
(http://www.ietf.org/ipr/
12. 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.
References
13.1 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
13.1 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 2339] IETF & Sun Microsystems, "An Agreement Between the
Internet Society, the IETF, and Sun Microsystems, Inc. in the
matter of NFS V.4 Protocols", RFC 2339, May 1998
14. 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.
15. Editors Address
Scott Bradner
Harvard University
29 Oxford St.
Cambridge MA, 02138
sob@harvard.edu +1 617 495 3864
16. 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
English.
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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.
17. 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
sec 6.1.1 - last sentence - reword
sec 6.2.1 - append sec 6.2.3
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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
ver 03 to ver 03
many editing changes throughout document
generally changed "claim" to "disclosure"
changed the disclosure email addresses and pointed to a web site for
instructions
sec 2.2.1 A - removed detail - reference sec 6.1.1
remove old sec 7
sec 4 - added definition of covered changed other text to use
"covered"
sec 5 - changed def of cover
sec 6.1.1, 6.1.2 & 6.1.3 - reword
open questions: document process for ipr & document advancement
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