path: root/doc/rfc/rfc3669.txt

Network Working Group                                            S. Brim
Request for Comments: 3669                           Cisco Systems, Inc.
Updates: 2026                                              February 2004
Category: Informational


     Guidelines for Working Groups on Intellectual Property Issues

Status of this Memo

   This memo provides information for the Internet community.  It does
   not specify an Internet standard of any kind.  Distribution of this
   memo is unlimited.

Copyright Notice

   Copyright (C) The Internet Society (2004).  All Rights Reserved.

Abstract

   This memo lays out a conceptual framework and rules of thumb useful
   for working groups dealing with Intellectual Property Rights (IPR)
   issues.  It documents specific examples of how IPR issues have been
   dealt with in the IETF.

Table of Contents

   1.  Introduction . . . . . . . . . . . . . . . . . . . . . . . . .  2
   2.  The Problem  . . . . . . . . . . . . . . . . . . . . . . . . .  2
   3.  The Approach . . . . . . . . . . . . . . . . . . . . . . . . .  3
   4.  Case Studies . . . . . . . . . . . . . . . . . . . . . . . . .  4
       4.1.  PPP CCP and ECP. . . . . . . . . . . . . . . . . . . . .  4
       4.2.  IPS WG (IP Storage). . . . . . . . . . . . . . . . . . .  5
       4.3.  PEM and PKI issues . . . . . . . . . . . . . . . . . . .  5
       4.4.  VRRP (Virtual Router Redundancy Protocol). . . . . . . .  6
       4.5.  Secure Shell (SecSH) . . . . . . . . . . . . . . . . . .  6
       4.6.  IDN (Internationalized Domain Name). . . . . . . . . . .  7
   5.  General Principles . . . . . . . . . . . . . . . . . . . . . .  8
       5.1.  Types of IPR . . . . . . . . . . . . . . . . . . . . . .  8
       5.2.  When to Think About IPR. . . . . . . . . . . . . . . . .  9
       5.3.  IPR as a Technology Evaluation Factor. . . . . . . . . .  9
       5.4.  Patents versus Pending Patents Applied For . . . . . . . 10
       5.5.  Applicability: It's Hard to Prove a Negative . . . . . . 11
       5.6.  Licensing Terms. . . . . . . . . . . . . . . . . . . . . 12
       5.7.  Third-Party Disclosure of IPR Claims . . . . . . . . . . 14
             5.7.1 Third-Party Disclosure Advice. . . . . . . . . . . 14
   6.  Security Considerations. . . . . . . . . . . . . . . . . . . . 15
   7.  Acknowledgments. . . . . . . . . . . . . . . . . . . . . . . . 15



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   8.  References . . . . . . . . . . . . . . . . . . . . . . . . . . 15
       8.1.  Normative References . . . . . . . . . . . . . . . . . . 15
       8.2.  Informative References . . . . . . . . . . . . . . . . . 16
   9.  Author's Address . . . . . . . . . . . . . . . . . . . . . . . 16
   10. Full Copyright Statement . . . . . . . . . . . . . . . . . . . 17

1.  Introduction

   This memo lays out a conceptual framework and rules of thumb to
   assist working groups dealing with IPR issues.  The goal is to
   achieve a balance between the needs of IPR claimants and the
   implementers of IETF standards 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 working group IPR
   treatment.  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 submission
   rights [5] and IPR in the IETF [6].  Rather, this memo is for working
   groups that are trying to decide what to do about technology
   contributions which have associated IPR claims.

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-impacted technology was anathema, has never recognized that
   the Internet has run on IPR-impacted 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 impacted 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-impacted.  It is not always the wrong decision
   to select IPR-impacted 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




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   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 issues, because the IETF's
   work includes technology from other sources and because the IETF
   collaborates with organizations that work with different approaches
   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 their (or their represented
      organization's) IPR claim regarding the contents of the document.

   o  A non-submitter IETF participant claims that the contents of a
      document are covered by their (or their represented
      organization's) own IPR.

   o  An IETF participant notes IPR that is claimed by an individual or
      organization with which neither an author of the document, nor the
      participant noting the IPR, have an affiliation.

   o  An individual or organization that does not participate in the
      IETF, but that monitors its activities, discovers that a document
      intersects that individual's or organization's established or
      pending intellectual property claims.  It may come forward right
      away, or wait and let the IETF work progress.

   In working group activities, 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.  Beyond
   that a working group can only make 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.  The goal 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 [5][6] lay out what needs to be done once a particular piece of
   technology is selected as a working group draft.  However, this
   doesn't help when a working group is trying to decide whether or not
   to select a technology in the first place.  This third memo is



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   written to help in making that decision.  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
   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 the important
   ones.

4.1.  PPP CCP and ECP

   The PPP Working Group adopted technology for PPP's Connection Control
   Protocol and Encryption Control Protocol about which an IPR
   disclosure had been received.  They indicated to the IESG that they
   believed the patented technology was the best approach, and was
   better than no standards at all.

   At that time, under the policies documented in RFC 1602 [1] (the
   precursor to RFC 2026), progress on any standard was to stop at the
   Proposed Standard phase until specific assurances about licensing
   terms could be obtained from all IPR claimants.  However, as
   described in RFC 1915 [3], in the case of PPP ECP and CCP, the IPR
   claimant balked at the requirement for specific assurances.

   In the end, with support from the working group, the variance
   procedure described in RFC 1871 [2] was followed to grant an
   exception to the RFC 1602 requirements.  If it had not been granted,
   the ECP and CCP standards could have been blocked permanently.

   Lessons:

   o  IPR claimants, even when their intentions are good, may strongly
      resist being forced to make specific public statements about
      licensing terms.  If explicit statements of licensing terms are
      required, then the publicly stated terms will probably be
      "worst-case", which would provide little useful information.





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4.2.  IPS WG (IP Storage)

   The IPS (IP Storage) Working Group evaluated technology developed
   outside of the working group, "secure remote password" (SRP, RFC 2945
   [7]).  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.

4.3.  PEM and PKI issues

   The PEM (Privacy-Enhanced Mail) Working Group 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
   deployment of Internet technology.  However, there was no alternative
   technology that came close to its capabilities.  Adopting an
   alternative would have damaged the standard's usefulness 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
   patents might be significant to start with, they would not be in the
   long run.  This lowered the perceived risk of using the IPR-impacted
   technology.



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   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.

4.4.  VRRP (Virtual Router Redundancy Protocol)

   The working group was standardizing VRRP based on a protocol
   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 the protocol developed in the working group
   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 claim when they went ahead with their 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 is primarily an unfinished trademark issue, not a patent issue,
   since the patent issue has been worked out outside of the IETF.  The
   holder of a trademark wants the IETF to stop using "SSH" in the names
   and bodies of its proposed standards.  The working group participants
   have 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.

   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.







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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, many working group
   participants investigated the claims themselves.  They concluded that
   it did not overlap.

   In one case, an IPR claimant 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
   legal advisers, concluded that the claims would not overlap the
   working group's developing technology, and decided that they need not
   be concerned about 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 working group discussion, rather than vice versa (or
   independent discovery).  The claimants were known to be following the
   working group'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 the 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 working group 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.







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   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).

5.  General Principles

   Given the case studies above, there are a few principles that working
   groups can start with in dealing with IPR.  Every working group needs
   to develop and 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 consider the needs of the
   Internet community and the public at large, including possible future
   implementers and users who will not have participated in the working
   group process when the standardization is taking place.

5.1.  Types of IPR

   A primer on the different types of IPR would be large, unreliable,
   and redundant with other Working Group documents [4][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.  Service marks 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.






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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 group participants
   who 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
      the working group.

   o  when comparing different kinds of IPR protection.

   At each of these times, the working group is strongly encouraged to
   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.  A working group's knowledge of IPR claims may therefore
   depend upon when a claimant steps forward during the course of a
   working group'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.



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   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-impacted -- we use IPR-impacted 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 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-impacted, some licensing 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
   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 in order to
   form their own individual opinions.  Discussions about the validity
   of IPR may take place under the auspices of the working group, in
   particular about relative risks of technology choices.  Individual
   participants may 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 and possibly the relevant IETF
   document sections, 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 -- perhaps not even then.  All the IETF





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   can expect regarding a pending patent is disclosure that it exists,
   the related IETF documents, and possibly the relevant IETF document
   sections and 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 royalty-free, or perhaps "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 prove that it is not
   covered by any IPR claim.  Anything a working group adopts may, in
   the future, turn out to be IPR-impacted, 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 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 all cases, licensing terms are a more significant consideration
   than the validity of the IPR claims.  Licensing terms often 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.










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5.6.  Licensing Terms

   Licensing terms vary across a range from no license required at all
   to prohibitive.  In general, working groups show a preference for
   technologies with IPR considerations in approximately the following
   order.  This list does not constitute a rule, and every working group
   needs to take its own circumstances into account.

   o  License not required.

   o  IPR licensed with no restrictions.

   o  IPR licensed with no material restrictions, e.g., no trademark
      license required.

   o  IPR licensed for a particular field of use but with no other
      material restrictions, e.g., licensed solely for implementations
      complying with a standard.

   o  IPR licensed under royalty-free terms and reasonable and
      non-discriminatory restrictions.

   o  IPR licensed under reasonable and non-discriminatory restrictions.
      This may include payment of a royalty.

   o  IPR which is otherwise licensable.

   o  IPR which is not licensable, i.e., which is only available as an
      implementation.

   o  IPR which is not available under any conditions.

   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 if an IPR disclosure 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.

   There is a class of restriction which involves "reciprocity", in
   which intellectual property may be licensed if the licensee is
   willing to license its intellectual property in return.  The



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   specificity of such agreements can vary, and the same or similar
   terms may be required.  Another potential licensing restriction is
   defensive suspension, where a licensor may revoke or suspend the
   license if the licensee asserts a patent claim against the licensor.
   For interpretation of any particular reciprocity or related issue,
   consult your legal adviser.

   Words such as "reasonable", "fair", and "non-discriminatory" have no
   objective legal or financial definition.  The actual licensing terms
   can vary tremendously.  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 non-discriminatory.  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.  Many employers of IETF participants know that
   the 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.  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 specific cases.  This
   sort of thing is weak but everything counts, and it may be of some
   help.

   In many jurisdictions that issue patents, inventors are required to
   file patent applications within 12 months of public disclosure or use
   of a novel method or process.  Since many of these jurisdictions also
   provide for publication of pending patent applications 18 months
   after a patent application is filed, the ability to determine whether
   or not claims have been made at all relating to a particular
   technology increases 30 months (12 + 18) after the public disclosure
   or use of that technology.






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5.7.  Third-Party Disclosure of IPR Claims

   It is good to notify the IETF of relevant IPR claims even when they
   are not one's own, and [6] says to do so "as soon as possible".
   However, anyone considering such a disclosure should do some
   preliminary exploration with the affected working group(s) beforehand
   (see Section 5.7.1).  Third-party disclosure is a potential denial of
   service threat to the working group, and therefore it is good form to
   proceed slowly at first.

   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 third-party disclosures accordingly.  Working group 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.

5.7.1.  Third-Party Disclosure Advice

   This subsection provides advice to those considering making
   third-party disclosures.  While not required, the actions described
   here are encouraged to aid working groups in dealing with the
   possible implications of third-party disclosures.  In evaluating what
   (if anything) to do in response to a third-party disclosure, a
   working group may consider the extent to which the discloser has
   followed this advice (for example, in considering whether a
   disclosure is intended primarily to defocus and distract the working
   group).

   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
   chair(s) before saying anything publicly.  After discussion with the
   working group chair(s), the potential discloser 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 the potential discloser is sure the discovered IPR
   claim applies, and the IPR claimant does not submit a first-party
   disclosure itself, then the potential discloser is encouraged to
   submit a third-party disclosure.



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   Intellectual property often applies to more than one working group.
   A person thinking of making a 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
   working group is focusing at that time.  Don't bring IPR claims to
   the working group's attention just in case they might be relevant in
   a few months, but only if they have 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.

6.  Security Considerations

   This memo relates to IETF process, not any particular technology.
   There are security considerations when adopting any technology,
   whether IPR claims are asserted against it 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.

7.  Acknowledgments

   The author would like to acknowledge the help of the IETF IPR Working
   Group.  The author would also like to thank the following for their
   extensive comments and suggestions: Robert Barr, David Black, Scott
   Bradner, Jorge Contreras, Paul Gleichauf, Keith Moore, Russell
   Nelson, Jon Peterson, Randy Presuhn, Pekka Savola, Valerie See, Bob
   Wyman, and Joe Zebarth.

8.  References

8.1.  Normative References

   [1]  Huitema, C. and P. Gross, "The Internet Standards Process --
        Revision 2", RFC 1602, March 1994.

   [2]  Postel, J., "Addendum to RFC 1602 -- Variance Procedure", BCP 2,
        RFC 1871, November 1995.

   [3]  Kastenholz, F., "Variance for The PPP Connection Control
        Protocol and The PPP Encryption Control Protocol", BCP 3, RFC
        1915, February 1996.

   [4]  Bradner, S., "The Internet Standards Process -- Revision 3", BCP
        9, RFC 2026, October 1996.




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   [5]  Bradner, S., Ed.,  "IETF Rights in Contributions", BCP 78, RFC
        3667, February 2004.

   [6]  Bradner, S., Ed., "Intellectual Property Rights in IETF
        Technology", BCP 79, RFC 3668, February 2004.

8.2.  Informative References

   [7]  Wu, T., "The SRP Authentication and Key Exchange System", RFC
        2945, September 2000.

9.  Author's Address

   Scott Brim
   Cisco Systems, Inc.
   146 Honness Lane
   Ithaca, NY  14850
   USA

   EMail: sbrim@cisco.com































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10.  Full Copyright Statement

   Copyright (C) The Internet Society (2004).  This document is subject
   to the rights, licenses and restrictions contained in BCP 78 and
   except as set forth therein, the authors retain all their rights.

   This document and the information contained herein are provided on an
   "AS IS" basis and THE CONTRIBUTOR, THE ORGANIZATION HE/SHE
   REPRESENTS OR IS SPONSORED BY (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.

Intellectual Property

   The IETF takes no position regarding the validity or scope of any
   Intellectual Property Rights 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 procedures with respect to
   rights in RFC documents can be found in BCP 78 and BCP 79.

   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.

Acknowledgement

   Funding for the RFC Editor function is currently provided by the
   Internet Society.









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