IPR Working Group S. Brim
Internet-Draft Cisco Systems, Inc.
Expires: August 19, 2003 February 18, 2003
Guidelines for Working Groups on Intellectual Property Issues
draft-ietf-ipr-wg-guidelines-01
Status of this Memo
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This Internet-Draft will expire on August 19, 2003.
Copyright Notice
Copyright (C) The Internet Society (2003). All Rights Reserved.
Abstract
This memo lays out a conceptual framework and rules of thumb useful
for working groups dealing with IPR issues. It documents specific
examples of how IPR issues have been dealt with in the IETF.
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Table of Contents
1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . 3
2. The Problem . . . . . . . . . . . . . . . . . . . . . . . . . 3
3. The Approach . . . . . . . . . . . . . . . . . . . . . . . . . 4
4. Case Studies . . . . . . . . . . . . . . . . . . . . . . . . . 5
4.1 IPS WG (IP Storage) . . . . . . . . . . . . . . . . . . . . . 5
4.2 PEM and PKI issues . . . . . . . . . . . . . . . . . . . . . . 5
4.3 CDI WG (Content Distribution Internetworking) . . . . . . . . 6
4.4 VRRP (Virtual Router Redundancy Protocol) . . . . . . . . . . 6
4.5 Secure Shell (SecSH) . . . . . . . . . . . . . . . . . . . . . 7
4.6 IDN (Internationalized Domain Name) . . . . . . . . . . . . . 7
5. General Principles . . . . . . . . . . . . . . . . . . . . . . 9
5.1 Types of IPR . . . . . . . . . . . . . . . . . . . . . . . . . 9
5.2 When to think about IPR . . . . . . . . . . . . . . . . . . . 9
5.3 IPR as a Technology Evaluation Factor . . . . . . . . . . . . 10
5.4 Patents versus Pending Patents Applied For . . . . . . . . . . 11
5.5 Applicability: It's Hard to Prove a Negative . . . . . . . . . 11
5.6 No Universal License Terms . . . . . . . . . . . . . . . . . . 12
5.7 Third Party Disclosure . . . . . . . . . . . . . . . . . . . . 13
6. Security Considerations . . . . . . . . . . . . . . . . . . . 14
Informative References . . . . . . . . . . . . . . . . . . . . 15
Author's Address . . . . . . . . . . . . . . . . . . . . . . . 15
Intellectual Property and Copyright Statements . . . . . . . . 16
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1. Introduction
This memo lays out a conceptual framework and rules of thumb for
working groups dealing with IPR issues. The goal is to achieve a
balance between the needs of IPR claimants and the implementers of
the Internet which is appropriate to current times. As part of
trying to distill out principles for dealing with IPR in IETF working
groups, it provides case studies of treatments of IPR issues that
have already been worked out. In other words, it documents the
running code of the IETF process.
This memo does not describe IPR procedures for document authors or
IPR claimants. Those are covered in two other memos, on IPR in the
IETF [5] and submitters' rights [6]. Rather, this memo is for working
groups that are trying to decide what to do about IPR-protected
technology contributions.
2. The Problem
Traditionally the IETF has tried to avoid technologies which were
"protected" through IPR claims. However, compromises have been made
since before the IETF was born. The "common knowledge" of the IETF,
that IPR-protected technology was anathema, has never dealt with the
fact that the Internet has run on IPR-protected technologies from the
beginning. Nowadays the majority of the useful technologies brought
to the IETF have some sort of IPR claim associated with them.
It will always be better for the Internet to develop standards based
on technology which can be used without concern about selective or
costly licensing. However, increasingly, choosing a technology which
is not protected by IPR over an alternative that is may produce a
weaker Internet. Sometimes there simply isn't any technology in an
area that is not IPR-protected. It is not always the wrong choice to
select IPR-protected technology, if the choice is made knowingly,
after considering the alternatives and taking the IPR issues into
account.
The IETF is not a membership organization. Other standards making
bodies may have membership agreements that member organizations must
sign and adhere to in order to participate. Membership agreements
may include strict procedures for dealing with IPR, or perhaps a
requirement that technology must be licensed royalty-free. This is
currently not possible in the IETF.
Even if the IETF had membership agreements, they would be difficult
to formulate in a way that covered IPR problems, because the IETF's
work includes technology from other sources and because the IETF
collaborates with organizations that work with different approaches
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to intellectual property. The IETF can encounter four different IPR
situations, at almost any time during the life of a document:
o A document submitter notes its IPR claim regarding the contents of
the document.
o An IETF participant claims that the contents of a document are
covered by their own IPR.
o IPR is noted, by the author of a document or by a different IETF
participant, that is claimed by an organization that does not
participate in the IETF at all.
o An organization that does not participate in the IETF, but that
monitors its activities, discovers that a document intersects that
organization's established or pending intellectual property
claims. It may come forward right away, or wait and let the IETF
work progress.
The IETF does not have detailed rules for each situation. Working
groups have essentially only one rule they can invoke -- about
individuals not participating in activities related to a technology
if they do not disclose known IPR. Other than that a working group
only has recommendations and requests.
Since every case is unique, and there are close to no general rules,
working groups need a great deal of freedom in dealing with IPR
issues. However, some amount of consistency is important so that
both contributors and users of eventual standards can know what to
expect.
3. The Approach
The goal of this memo is not to make rules. It is to give working
groups as much information as possible to make informed decisions,
and then step out of the way. The other IPR working group memos (see
the IPR Working Group charter page [1]) lay out what needs to be done
once a particular piece of technology is selected as a working group
draft. That doesn't help when a working group is trying to decide
whether to select a technology or not in the first place. Thus this
third memo. We want to build a conceptual framework, a new set of
"common knowledge", to make it easier for working groups to deal with
intellectual property issues.
To do so, we first present "case studies" in Section 4 -- real events
that have happened in recent years, and how different working groups
dealt with them -- plus notes on possible lessons to be learned. In
Section 5, we expand on these lessons and try to extract general
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principles.
4. Case Studies
The best way to know what works in dealing with IPR is to look at
past attempts to do so. The following are selected as cases from
which general lessons might be extracted. Other lessons might be
extracted from other cases, but the cases below cover all of the
important ones.
4.1 IPS WG (IP Storage)
The IPS Working Group evaluated technology developed outside of the
working group, "secure remote password" (SRP, RFC2945 [4]). At the
time, there was one known IPR claim, and the proposed licensing terms
were apparently reasonable. SRP had become a proposed standard
without going through any working group, so IETF participants may
have been less likely to notice it in order to make statements about
IPR. In any case, two more possible IPR claims were uncovered after
the IPS working group had already decided to make SRP required. One
of the possible IPR claimants did not make a strong IPR claim itself,
and did not want to take the time to determine whether it actually
had a claim, though it acknowledged it might have a claim. In both
cases it was difficult to obtain concrete information on possible
licensing terms, even though words like "reasonable" and
"non-discriminatory" were used in the IPR statements. Rumors of what
they might be like did not sound good. The working group
participants took the claims, potential and otherwise, very
seriously, and decided not to use SRP after all, even though they had
already chosen it based on other criteria.
Lessons:
o IPR claims may appear at any time in the standards process.
o Take impreciseness seriously. Attempt to get clarification on
both IPR claims and licensing terms.
4.2 PEM and PKI issues
PEM (Privacy-Enhanced Mail) wanted to use public key technology. In
the mid-90s, the basic principles of public key infrastructure had
been patented for years. The patent holder had shown a tendency to
actively enforce its rights, and to prefer software sales to
licensing. This was seen as a significant potential issue, one which
could possibly interfere with the easy development of the Internet.
However, there was no alternative technology that came close to its
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capabilities. Adopting an alternative would have damaged the
Internet's health and flexibility even more than adopting a
technology with IPR claims. The case was so compelling that the
working group participants decided to move forward on standardizing
it and even requiring it.
One factor which was noted was that the patents were mature, and
would expire within a few years. That meant that although the impact
might be significant to start with, it would not be in the long run.
This lowered the perceived risk of using the IPR-protected
technology.
Lessons:
o IPR is just one issue in deciding whether to adopt a technology.
o IPR is not an all or nothing issue. There are different types and
levels of IPR protection.
o The IPR's lifecycle phase can be a consideration.
4.3 CDI WG (Content Distribution Internetworking)
The CDI Working Group laid out an overall architecture and found that
a number of included technologies had IPR claims associated with
them, based on work done before the working group was started. The
working group participants decided there was little chance of
producing alternative technologies which were as useful and which did
not run up against these IPR claims. As usual, there was no good way
to evaluate claims and possible licensing terms until after the
technology had been completely specified (at the earliest).
Working group participants generally thought they had a good idea
what to expect from each other, and that the ultimate benefits of
using the technologies outweighed the IPR issues. The working group
participants decided not to consider IPR as an issue at all in
determining which technologies to adopt.
Lessons:
o Past experience can be used as a significant factor in evaluating
the possible impact of IPR.
4.4 VRRP (Virtual Router Redundancy Protocol)
The working group was standardizing VRRP based on a protocol
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developed outside the IETF. The IPR claimant supported that protocol
and stated that it would license its IPR for that protocol if it
became the standard, but not for the similar protocol the working
group was developing. The working group participants decided to go
ahead and standardize its protocol anyway. The IPR claimant has only
claimed its patent when someone else claimed a patent against it.
There is no evidence that the working group participants actually
thought about the implications of the IPR when it went ahead with its
choice of protocol.
Lessons:
o IPR claims should never be disregarded without good cause. Due
diligence should be done to understand the consequences of each
claim.
4.5 Secure Shell (SecSH)
This was primarily a trademark issue, not a patent issue, since the
patent issue had been worked out outside of the IETF. The holder of
a trademark wanted the IETF to stop using "SSH" in the names and
bodies of its proposed standards. The working group participants
thought through the details of the claims, and possible implications
and risks, and decided to go ahead and continue using the names as
they are now. This issue is still being worked through.
Lessons:
o Working group participants can evaluate IPR claims not only for
their possible validity, but also for the risk of misjudging that
validity. The impact of honoring the IPR claim may be major or
minor.
4.6 IDN (Internationalized Domain Name)
The IDN working group dealt with a number of IPR claims. Several were
made which did not overlap with the technology -- the IPR claimants
said the patents were being announced just in case the working group
decided to go that way. In one case, even though a patent was
announced as purely defensive, the working group participants
investigated the claims themselves. They concluded that it did not
overlap.
In one case, an IPR claimer asserted that the working group's
documents, and in fact the IETF as a whole, were infringing on its
rights. Individual working group participants consulted with their
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legal advisers, concluded that the claims would not overlap the
working group's developing technology, and decided to ignore the
claims. This was reflected in the direction the group as a whole
decided to take.
In another case, patent claims were asserted that appeared to be
derived from WG discussion and impact, rather than vice versa (or
independent discovery). The claimants were known to be following the
WG's work when the ideas were proposed, and their patent filing was
considerably subsequent to that time.
In 2000 the IDN working group discovered a patent that some
participants thought might apply to one of their main drafts. If it
did, it could affect their work profoundly -- to the extent that some
suggested that if they could not work out reasonable licensing terms
with the IPR claimant they might just disband. As a group and
individually, participants corresponded with IPR claimant in order to
get an explicit statement of licensing terms, preferably
royalty-free. By doing so they gained a better understanding of just
which WG activities were seen as infringing on the patent, and at
least some understanding of the IPR claimant's intentions and
philosophy. Since the patent holder seemed to have an interest in
using the patent for profit, the group discussed the issues on its
mailing list. They overtly talked about how they could change their
proposed technology to avoid having to contest the patent, and the
extent to which the patent might be countered by claims of prior art.
Meanwhile, individually they were talking to their legal advisors.
Gradually, a collective opinion formed that the working group
documents did not infringe on the patent. Since then, the patent has
been ignored. However, they are keeping a watchful eye out for
continuation patents which might have already been submitted.
Lessons:
o It's sometimes beneficial to push IPR claimants to find out what
they think their claims cover and what their licensing terms are.
o Possibilities of prior art should be considered.
o It's all right, and sometimes beneficial, to discuss IPR claims
and gather information about possible prior art on the group list.
The results of such discussion can be considered when deciding
whether to develop a technology (but remember that neither the
IETF nor any working group takes a stand on such claims as a body,
and the group is not the best place to get legal advice).
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5. General Principles
Given the case studies above, here are a few principles that working
groups can start with in dealing with IPR. Of course every working
group needs to follow its own consensus, and actual treatments will
vary as much as they have in the past. However, every working group
also needs to take IPR seriously, and follow these general
principles.
5.1 Types of IPR
A primer on the different types of IPR would be large, unreliable,
and redundant with other Working Group documents [2][5][6]. For
informal exploration, see those documents and other relevant sources
on the web. Readers with more serious concerns should consult their
legal advisors. In the United States, briefly:
o Trademarks indicate the sources of goods. Servicemarks indicate
the sources of services. They protect the use of particular marks
or similar marks.
o Copyrights protect the expressions of ideas (not the ideas
themselves), in almost any form, and allow "fair use". Copyrights
expire but they can be renewed.
o Patents protect "inventions". They expire (utility patents expire
after 20 years), but follow-on patents can cover similar
technologies and can have nearly the same implications for use in
the Internet as the original patents.
5.2 When to think about IPR
This memo does not describe IPR procedures for document authors or
IPR claimants. Rather, this memo is for working groups that are
trying to decide what to do about IPR claims related to their work.
A working group as a whole needs to think about IPR issues:
o when examining a technology, and deciding whether to initiate work
on it.
o when deciding whether to adopt a draft as a working group
document.
o when choosing between two or more working group drafts that use
different technologies.
o when deciding whether to depend on a technology developed outside
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the working group.
o when comparing different kinds of IPR protection.
At each of these times, the working group should solicit disclosure
of IPR claims and licensing terms. A working group's job will be a
lot easier if IPR details are discovered early, but it should realize
that IPR claims may appear at any time. Working groups should
anticipate that an IPR claimant might choose not to participate in
the IETF, but instead to monitor from a distance while the relevant
technology is being discussed and evaluated. Actual IPR claims may
therefore depend upon when a claimant steps forward during the course
of a WG's deliberations.
5.3 IPR as a Technology Evaluation Factor
How do you weigh IPR claims against other issues when deciding
whether to adopt a technology?
The ultimate goal of the IETF is to promote the overall health,
robustness, flexibility and utility of the Internet infrastructure.
We base architectural decisions on our long-term extrapolations of
requirements by thinking in these terms. When considering a
particular technology, we compare it with other technologies not just
for its elegance of design in and of itself, but also for how it fits
in the bigger picture. This is done at multiple levels. It is
examined for how it fits into the overall design of the working
group's output, how it fits into the particular Internet
infrastructure area, how it fits with work going on in other areas,
and how it fits in the long view of the Internet architecture.
Similarly, when evaluating a technology, working group participants
consider IPR claims on it (including possible copyright issues with
text describing it). The issue is not whether a particular piece of
technology is IPR-protected -- we use IPR-protected technology every
minute. The question is how much the IPR protection will limit the
technology's usefulness in building a robust, highly useful Internet.
Thus, the only significant questions are: is the IPR claim relevant,
and if so what are the terms under which the technology can be used?
When technology is free from IPR protection the answer is easy. When
it is IPR-protected, some terms make the IPR issues insignificant
compared to the engineering issues. Other terms can make a
technology unusable even if it is perfect otherwise.
The problem with IPR as a technology evaluation factor is that it is
unlikely that a working group, as an entity, can ever claim to have
reached consensus on most IPR issues. The IETF as a whole, and a
working group as a whole, takes no stance on the validity of any IPR
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claim. It would be inappropriate for a working group chair to
declare that consensus had been reached that, for example, a
company's patent was invalid. Individual participants will need to
use whatever legal advice resources they have access to to form their
own individual opinions. Discussions about the validity of IPR can
take place under the auspices of the working group, in particular
about relative risks of technology choices. Individual participants
can take these discussions into account. The working group as a body
may not take a stance on validity, but it may make choices based on
perceived risk.
5.4 Patents versus Pending Patents Applied For
The IETF does not (cannot) expect IPR claimants to tell a working
group specifically how they think a particular patent applies. If a
patent has already been granted, the IETF can reasonably expect
disclosure of the patent number, which will allow working group
participants to explore details of the claims. If a patent has not
yet been granted (or if knowledge of the patent is restricted, e.g.
for security reasons), significantly less information is available.
In most countries patent applications are published 18 months after
they are filed, but in the USA that can be avoided if the applicant
does not also file outside the USA. In some countries applications
are a matter of public record, but details of pending claims can be
modified at any time by the claim submitter before the patent is
granted. It is not known before then what rights will actually be
granted. Finally, rights can be contested in court, and nothing is
final until the courts decide. All the IETF can expect regarding a
pending patent is disclosure that it exists and possibly some
statement about licensing terms.
5.5 Applicability: It's Hard to Prove a Negative
Working group participants must make their own decisions about what
level of confidence they need as to whether IPR is applicable.
However, perfect knowledge is not a worthwhile goal.
In general, a working group should strive to find out about all IPR
claims related to technologies it is considering, and at least the
general facts about licensing terms for each case -- for example
whether the terms will be "reasonable and non-discriminatory".
Working group participants should also investigate possibilities of
prior art which would counter the IPR claims. However, even if the
working group participants do exhaustive searches, both externally
and internally to their employers, it is impossible to prove that a
particular technology is not covered by a particular IPR claim, let
alone proving that it is not covered by any IPR claim. Anything a
working group adopts may, in the future, turn out to be
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IPR-protected, although the IPR claim may not be discovered until
years later. Claims are open to interpretation even after rights are
granted. Drafts can be very fluid, even up to the time of last call,
and IPR issues may unknowingly be taken on at any time. Absolute
certainty about IPR claims is extremely rare.
However, the level of confidence needed to consider IPR when
evaluating a technology is often not hard to get to. There are cases
where risk is high (e.g. where licensing terms may be onerous) and
thus a high level of confidence about applicability is needed, but
history shows that most of the time "rough" confidence is good
enough. In any case, perfect confidence is usually impossible.
In all cases, licensing terms are a more significant consideration
than the validity of the IPR claims. Most of the time licensing
terms are reasonable and do not limit the usefulness of the
technology. It is difficult to be sure about the validity of IPR
claims. If the licensing terms can be determined to be reasonable,
then the IPR claims become much less important.
5.6 No Universal License Terms
Licensing terms vary across a range from prohibitive to no license
required at all. In general there are four classes of situation
which will be encountered.
o No license - licenses per se are not available. Local regulations,
if any, apply.
o Public domain - the technology is explicitly made available to
all, without any IPR claims.
o General "free" license - the technology is made available free of
charge. There may be terms which specify conditions for use of
the technology, for example regarding redistribution. There is a
form of this license which invokes "reciprocity", in which the
technology may be used as long as the licensee allows the IPR
claimant to use the licensee's technology in the same area under
comparable terms. A requirement for general reciprocity is also
possible, under which the technology is made available as long as
the licensee does not enforce any IPR claims against the licenser.
o "Reasonable and non-discriminatory" (RAND) terms - the license is
granted based on some terms which may include reciprocity. The
terms can vary tremendously. Even when IPR claims do use words
such as "reasonable", "fair", and "non-discriminatory", working
groups should keep in mind that these words have no objective
legal definition, at least not in this context.
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Many IPR claimants do not like to publish specific terms under which
they will issue licenses. They may use standard terms for many
licensees, but they prefer to negotiate terms for some. Therefore,
do not expect any IPR disclosure statement to lay out detailed
blanket terms for licensing.
If an IPR disclosure statement lists only vague terms, that doesn't
mean the terms that will be offered in individual licenses will be
any worse than those offered in an IPR claim that makes very specific
statements. Obviously, if an IPR claimant refuses to suggest any
terms at all, the working group is going to have trouble evaluating
the future utility of the technology.
Recall that words such as "reasonable", "fair", and
"non-discriminatory" have no objective legal or financial definition.
Also, IPR claimants have occasionally asserted that there were
already sufficient licenses for a particular technology to meet
"reasonable" multisource and competitiveness requirements and, hence,
that refusing to grant any licenses to new applicants was both fair
and nondiscriminatory. The best way to find out what an IPR claimant
really means by those terms is to ask, explicitly. It also helps to
gather knowledge about licenses actually issued, for that technology
or for others, and about other experiences with the IPR claimant.
Despite the fact that IPR claimants often don't like to publish
explicit terms, there are levels of vagueness, and individuals and
even working groups can sometimes successfully push an IPR claimant
toward less vagueness. The employers of IETF participants all know
that that IETF prefers explicit terms, and do feel pressure to
produce them.
If working group participants are dissatisfied with the confidence
level they can obtain directly about licensing terms for a particular
technology, they can possibly extrapolate from history. As part of
the standards process as described in RFC2026 [2], in order for
licensed technology to become a draft standard, at least two
independent licenses need to have been issued. If the IPR claimant
for the technology the working group is considering has licensed
other technology in the past, there is a record of the sorts of terms
they are willing to grant, at least in those two specific cases. This
sort of thing is weak but everything counts, and it may be some
indication.
5.7 Third Party Disclosure
Formal procedures for third party disclosures are the same as those
outlined in [5]. However, before those procedures are followed some
preliminary explorations are a good idea. Third party disclosure is
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a potential denial of service threat to the working group, and
therefore it is good form to proceed slowly.
In general a potential discloser should exchange mail with the
working group chair(s) first, to open the way for discussion. Also,
if the potential discloser is not sure if the IPR claim applies, this
is the time to reach some kind of agreement with the working group
chairs before saying anything publicly. After discussion with the
working group chairs, they should bring the issue to the attention of
the working group, and to the attention of the IPR claimant if doing
so is not too difficult. Such discussion should help the potential
discloser to become more sure, one way or the other. If they are
sure the discovered IPR claim applies, and the IPR claimant does not
submit a firstparty disclosure itself, then they have a
responsibility to submit a third party disclosure.
Intellectual property often applies to more than one working group.
A person thinking of third party disclosure should consider what
other working groups might be affected, and communicate with them in
the same manner.
Don't bring up IPR issues that are unrelated to the areas where the
WG is focusing at that time. Don't bring claims to the WG's
attention just in case it might go there in a few months, only if it
has implications for current work. Messages to the working group list
should be substantive and a single message should focus on a specific
issue. They can reference multiple claims or patents related to that
issue.
Working group participants should be aware that third party
disclosure can be used, knowingly or unknowingly, to defocus and
distract the working group and hinder its progress. They should
evaluate 3rd party claims accordingly. WG chairs should be willing
and able to discipline those they think are using the third party
disclosure system inappropriately. Those who think they are being
unfairly blocked may take the matter up with the Area Directors and/
or the IESG.
All of the criteria for evaluating IPR claims discussed in the
sections above apply in the case of third party disclosures as well,
to the extent they can be practiced.
6. 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
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technology, just as IPR is one part, but they are not issues of
security with IPR procedures.
There may be security issues with procedures for dealing with IPR,
but they are not technical. They have more to do with
unintentionally revealing corporate intellectual property through
human activity than risking anything when using a protocol.
Informative References
[1] IETF, "IPR Working Group web page", 2002, <http://www.ietf.org/
html.charters/ipr-charter.html>.
[2] Bradner, S., "The Internet Standards Process -- Revision 3", BCP
9, RFC 2026, October 1996.
[3] Bradner, S., "Key words for use in RFCs to Indicate Requirement
Levels", BCP 14, RFC 2119, March 1997.
[4] Wu, T., "The SRP Authentication and Key Exchange System", RFC
2945, September 2000.
[5] Bradner, S., "Intellectual Property Rights in IETF Technology",
draft-ietf-ipr-technology-rights-01 (work in progress), February
2003.
[6] Bradner, S., "IETF Rights in Submissions",
draft-ietf-ipr-submission-rights-01 (work in progress), February
2003.
Author's Address
Scott Brim
Cisco Systems, Inc.
146 Honness Lane
Ithaca, NY 14850
USA
EMail: sbrim@cisco.com
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Internet-Draft WG IPR Guidelines February 2003
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Internet-Draft WG IPR Guidelines February 2003
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