Network Working Group Scott Bradner
Internet-Draft Harvard University
Intended status: BCP
Obsoletes: 3979, 4879 Jorge Contreras
Updates: 2026 University of Utah
Expires: August 1, 2017 March 1, 2017
Intellectual Property Rights in IETF Technology
draft-bradner-rfc3979bis-12.txt
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 as possible about any IPR constraints on a technical
proposal as early as possible in the development process. The
policies are intended to benefit the Internet community and the
public at large, while respecting the legitimate rights of IPR
holders. This document sets out 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 document
updates RFC 2026 and, with RFC 5378, replaces Section 10 of RFC 2026.
This document also obsoletes RFC 3979 and RFC 4879.
Status of this document
This Internet-Draft is submitted in full conformance with the
provisions of BCP 78 and BCP 79.
Internet-Drafts are working documents of the Internet Engineering
Task Force (IETF). Note that other groups may also distribute
working documents as Internet-Drafts. The list of current Internet-
Drafts is at https://datatracker.ietf.org/drafts/current/.
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."
This Internet-Draft will expire on October 20, 2014.
Copyright Notice
Copyright (c) 2016 IETF Trust and the persons identified as the
document authors. All rights reserved.
Bradner & Contreras [Page 1]
Internet-Draft RFC 3979 bis March 2017
This document is subject to BCP 78 and the IETF Trust's Legal
Provisions Relating to IETF Documents
(http://trustee.ietf.org/license-info) in effect on the date of
publication of this document. Please review these documents
carefully, as they describe your rights and restrictions with respect
to this document.
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.
The list of current Internet-Drafts can be accessed at
http://www.ietf.org/1id-abstracts.html
The list of Internet-Draft Shadow Directories can be accessed at
http://www.ietf.org/shadow.html
Table of Contents
1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . .
2. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . .
3. Participation in the IETF . . . . . . . . . . . . . . . . . . . .
3.1. General Policy . . . . . . . . . . . . . . . . . . . . . . . .
3.2. Rights and Permissions in Contributions. . . . . . . . . . . . .
3.3. Obligations on Participants . . . . . . . . . . . . . . . . . .
4. Actions for Documents for which IPR Disclosure(s)
Have Been Received . . . . . . . . . . . . . . . . . . . . . . .
5. IPR Disclosures . . . . . . . . . . . . . . . . . . . . . . . . .
5.1. Who Must Make an IPR Disclosure? . . . . . . . . . . . . . . . .
5.1.1. A Contributor's IPR in his or her Contribution . . . . . . .
5.1.2. An IETF Participant's IPR in Contributions by Others . . . .
5.1.3. IPR of Others . . . . . . . . . . . . . . . . . . . . . . . .
5.2. The Timing of Providing Disclosure . . . . . . . . . . . . . . .
5.2.1. Timing of Disclosure Under Section 5.1.1 . . . . . . . . . . .
5.2.2. Timing of Disclosure Under Section 5.1.2 . . . . . . . . . . .
5.3. How Must an IPR Disclosure be Made? . . . . . . . . . . . . . .
5.4. What Must be in an IPR Disclosure? . . . . . . . . . . . . . . .
5.4.2. Updating IPR Disclosures . . . . . . . . . . . . . . . . . . .
5.4.3. Blanket IPR Statements . . . . . . . . . . . . . . . . . . . .
5.5. Licensing Information in an IPR Disclosure . . . . . . . . . . .
5.6. Level of Control over IPR requiring Disclosure . . . . . . . . .
5.7. Disclosures for Oral Contributions . . . . . . . . . . . . . . .
5.8. General Disclosures . . . . . . . . . . . . . . . . . . . . . .
6. Failure to Disclose . . . . . . . . . . . . . . . . . . . . . . .
7. Evaluating Alternative Technologies in IETF Working Groups . . . .
8. Change Control for Technologies . . . . . . . . . . . . . . . . .
9. Licensing Requirements to Advance Standards Track IETF Documents .
Bradner & Contreras [Page 2]
Internet-Draft RFC 3979 bis March 2017
10. No IPR Disclosures in IETF Documents . . . . . . . . . . . . . .
11. Application to non-IETF Stream Documents . . . . . . . . . . . .
12. Security Considerations . . . . . . . . . . . . . . . . . . . .
13. Changes Since RFC 3979 and RFC 4879 . . . . . . . . . . . . . . .
14. References . . . . . . . . . . . . . . . . . . . . . . . . . . .
14.1. Normative References . . . . . . . . . . . . . . . . . . . . .
14.2. Informative References . . . . . . . . . . . . . . . . . . . .
15. Editor's Addresses . . . . . . . . . . . . . . . . . . . . . . .
16. Changes since RFC 3979 . . . . . . . . . . . . . . . . . . . . .
1. Definitions
The following definitions are for terms used in the context of this
document. Other terms, including "IESG," "ISOC," "IAB," and "RFC
Editor," are defined in [RFC2028].
a. "Alternate Stream": the IAB Document Stream, the IRTF Document
Stream and the Independent Submission Stream, each as defined in
Section 5.1 of [RFC4844], along with any future non-IETF streams
that might be defined.
b. "Contribution": any submission to the IETF intended by the
Contributor for publication as all or part of an Internet-Draft or
RFC and any statement made within the context of an IETF activity,
in each case that is intended to affect the IETF Standards Process
or that is related to the activity of an Alternate Stream that has
adopted this policy.
Such statements include oral statements, as well as written and
electronic communications, which are addressed to:
o the IETF plenary session,
o any IETF working group [see BCP 25] (WG) or portion thereof or
any WG chair on behalf of the relevant WG,
o any IETF "birds of a feather" (BOF) session or portion thereof,
o WG design teams [see BCP 25] and other design teams that intend
to deliver an output to IETF, or portions 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, web site, chat room or discussion board,
operated by or under the auspices of the IETF, including the
IETF list itself,
o the RFC Editor or the Internet-Drafts function.
Statements made outside of an IETF session, mailing list or other
function, or that are clearly not intended to be input to an IETF
activity, group or function, are not Contributions in the context
of this document. For example, the presentations made by invited
Bradner & Contreras [Page 3]
Internet-Draft RFC 3979 bis March 2017
speakers at IETF plenary sessions to discuss advances in Internet
technology generally, or to describe their existing products or
technologies, are not Contributions.
Throughout this document, the term "written Contribution" is used.
For purposes of this document, "written" means reduced to a
written or visual form in any language and any media, permanent or
temporary, including but not limited to traditional documents, e-
mail messages, discussion board postings, slide presentations,
text messages, instant messages, and transcriptions of oral
statements.
c. "Contributor": an individual submitting a Contribution
d. "Covers" or "Covered" mean that a valid claim of a patent or a
patent application (including a provisional patent application) in
any jurisdiction , or any other Intellectual Property Right, would
necessarily be infringed by the exercise of a right (e.g., making,
using, selling, importing, distribution, copying, etc.) with
respect to an Implementing Technology. For purposes of this
definition, "valid claim" means a claim of any unexpired patent or
patent application which shall not have been withdrawn, cancelled
or disclaimed, nor held invalid by a court of competent
jurisdiction in an unappealed or unappealable decision.
e. "IETF": In the context of this document, the IETF includes all
individuals who participate in meetings, working groups, mailing
lists, functions and other activities which are organized or
initiated by ISOC, the IESG or the IAB under the general
designation of the Internet Engineering Task Force or IETF, but
solely to the extent of such participation.
f. "IETF Documents": RFCs and Internet-Drafts that are published as
part of the IETF Standards Process. These are also referred to as
"IETF Stream Documents" as defined in Section 5.1.1 of RFC 4844.
g. "IETF Standards Process": the activities undertaken by the IETF in
any of the settings described in the above definition of
Contribution. The IETF Standards Process may include
participation in activities and publication of documents that are
not directed toward the development of IETF standards or
specifications, such as the development and publication of
informational documents.
h. "IPR" or "Intellectual Property Rights": means a patent, utility
model, or similar right that may Cover an Implementing Technology,
whether such rights arise from a registration or renewal thereof,
or an application therefore, in each case anywhere in the world.
Bradner & Contreras [Page 4]
Internet-Draft RFC 3979 bis March 2017
See [RFC5378] for a discussion of Trademarks.
i. "Implementing Technology": means a technology that implements an
IETF specification or standard.
j. "Internet-Draft": a document used in the IETF and RFC Editor
processes, as described in [RFC2026 Section 2.2].
k. "Participating in an IETF discussion or activity": means making a
Contribution, as described above, or in any other way acting in
order to influence the outcome of a discussion relating to the
IETF Standards Process. Without limiting the generality of the
foregoing, acting as a working group chair or Area Director
constitutes "Participating" in all activities of the relevant
working group(s) he or she is responsible for in an area.
"Participant" and "IETF Participant" mean any individual
Participating in an IETF discussion or activity.
l. "Reasonably and personally known": means 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.
m. "RFC": the basic publication series for the IETF. RFCs are
published by the RFC Editor. (See [RFC2026] Section 2.1)
2. Introduction
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 as possible about any IPR constraints on a technical
proposal as early as possible in the development process. The
policies are intended to benefit the Internet community and the
public at large, while respecting the legitimate rights of IPR
holders. This document 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 document
updates RFC 2026 and, with RFC 5378, replaces Section 10 of RFC 2026.
This document also obsoletes RFC 3979 and RFC 4879.
RFC 2026, Section 10 established three basic principles regarding the
IETF dealing with claims of Intellectual Property Rights:
Bradner & Contreras [Page 5]
Internet-Draft RFC 3979 bis March 2017
(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 the
Contributor or other IETF participant believes Covers or may
ultimately Cover 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 applies to all IPR of the participant, the
participant's employer, sponsor, or others represented by the
participants, that is reasonably and personally known to the
participant. No patent search is required.
Section 1 defines the terms used in this document. Sections 3
through 11 set forth the IETF's policies and procedures relating to
IPR. Section 13 lists the changes between this document and RFCs
3979 and 4879. A separate document [RFC5378] deals with rights (such
as copyrights and Trademarks) in Contributions, including the right
of IETF and IETF Participants to publish and create derivative works
of those Contributions. This document is not intended to address
those issues. See RFC 6702 [RFC6702] for a discussion of "Promoting
Compliance with Intellectual Property Rights (IPR) Disclosure Rules".
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.
3. Participation in the IETF
3.1. General Policy
In all matters relating to Intellectual Property Rights, the intent
is to benefit the Internet community and the public at large, while
respecting the legitimate rights of others. The disclosures required
by this policy are intended to help IETF working groups define
superior technical solutions with the benefit of as much information
as reasonably possible about potential IPR claims relating to
technologies under consideration.
3.2. Rights and Permissions in Contributions
By submission of a Contribution, each person actually submitting the
Bradner & Contreras [Page 6]
Internet-Draft RFC 3979 bis March 2017
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 or is
sponsored by (if any) when submitting the Contribution.
3.3. Obligations on Participants
By Participating in IETF, each Participant is deemed to agree to
comply with all requirements of this RFC that relate to Participation
in IETF activities. Without limiting the foregoing, each Participant
that is a Contributor makes the following representations to IETF:
A. Such Contributor represents that he or she has made or will
promptly make all disclosures required by Section 5.1.1 of this
document.
B. Such Contributor represents that there are no limits to the
Contributor's ability to make the grants, acknowledgments and
agreements herein that are reasonably and personally known to the
Contributor.
4. Actions for Documents for which IPR Disclosure(s) Have Been Received
A. The IESG, IAB, ISOC and IETF Trust disclaim 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 IPR.
B. When the IETF Secretariat has received a notification under
Section 5.1.3 of the existence of non-participant IPR that
potentially Covers a technology under discussion at IETF or which
is the subject of an IETF Document, the IETF Secretariat shall
promptly publish such notification and will request that the
identified third party make an IPR disclosure in accordance with
the provisions of Section 5.
C. When an IPR disclosure has been made as provided in Section 5 of
this document, the IETF Secretariat may request from the purported
holder of such IPR a written assurance that upon approval by the
IESG for publication of the relevant IETF specification(s) as one
or more RFCs, 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 5.5.A below unless a statement identifying
one of the licensing options described in Section 5.5.A has
already been received by the IETF Secretariat. The working group
Bradner & Contreras [Page 7]
Internet-Draft RFC 3979 bis March 2017
proposing the use of the technology with respect to which the
Intellectual Property Rights are disclosed may assist the IETF
Secretariat in this effort.
The results of this procedure shall not, in themselves, block
publication of an IETF Document or advancement of an IETF 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 Secretariat, and be made available online.
D. The IESG will not make any determination that any 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 (see RFC 6410). If the two unrelated
implementations of the specification that are required to advance
from Proposed Standard to Standard have been produced by different
organizations or individuals, or if the "significant
implementation and successful operational experience" required to
advance from Proposed Standard to Standard has been achieved, the
IESG will presume that there is some evidence that the terms are
reasonable and to some degree non-discriminatory. Note that this
also applies to 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.
5. IPR Disclosures
This document refers to the IETF Participant making disclosures,
consistent with the general IETF philosophy that Participants in the
IETF act as individuals. A Participant's obligation to make a
disclosure is also considered satisfied if the IPR owner, which may
be the Participant's employer or sponsor, makes an appropriate
disclosure in place of the Participant doing so.
5.1. Who Must Make an IPR Disclosure?
5.1.1. A Contributor's IPR in his or her Contribution
Any Contributor who reasonably and personally knows of IPR meeting
the conditions of Section 5.6 which the Contributor believes Covers
or may ultimately Cover his or her written Contribution that is
intended to be used as an input into the IETF Standards Process, or
which the Contributor reasonably and personally knows his or her
employer or sponsor may assert against Implementing Technologies
Bradner & Contreras [Page 8]
Internet-Draft RFC 3979 bis March 2017
based on such written Contribution, must make a disclosure in
accordance with this Section 5.
5.1.2. An IETF Participant's IPR in Contributions by Others
If an individual's Participation relates to a written Contribution
made by somebody else that is intended to be used as an input into
the IETF Standards Process, and such Participant reasonably and
personally knows of IPR meeting the conditions of Section 5.6 which
the Participant believes Covers or may ultimately Cover that
Contribution, or which the Participant reasonably and personally
knows his or her employer or sponsor may assert against Implementing
Technologies based on such written Contribution, then such
Participant must make a disclosure in accordance with this Section 5.
5.1.3. Voluntary IPR Disclosures
If any person has information about IPR that may Cover a technology
relevant to the IETF Standards Process, but such person is not
required to disclose such IPR under Sections 5.1.1 or 5.1.2 above,
such person is nevertheless encouraged to file an IPR disclosure as
described in Section 5.3 below. Such an IPR disclosure should be
filed as soon as reasonably possible after the person realizes that
such IPR may Cover a Contribution. Situations in which such voluntary
IPR disclosures may be made include (a) when IPR does not meet the
criteria in Section 5.6 because it is not owned or controlled by an
IETF Participant or his or her sponsor or employer (referred to as
third party IPR), (b) an individual is not required to disclose IPR
meeting the requirements of Section 5.6 because that individual is
not Participating in the relevant IETF activity or (c) the IPR Covers
technology that does not yet meet the criteria for a Contribution
hereunder (e.g., it is disclosed in an informal or other non-IETF
setting).
5.2. The Timing of Disclosure
Timely IPR disclosure is important because working groups need to
have as much information as they can while they are evaluating
alternative solutions.
5.2.1. Timing of Disclosure Under Section 5.1.1
A. The IPR disclosure required pursuant to section 5.1.1 must be made
as soon as reasonably possible after the Contribution is submitted
or made unless the required disclosure is already on file. See
Section 5.4.2 for a discussion of when updates need to be made for
an existing disclosure.
Bradner & Contreras [Page 9]
Internet-Draft RFC 3979 bis March 2017
B. If a Contributor first learns of IPR in its Contribution that
meets the conditions of Section 5.6, for example a new patent
application or the discovery of a relevant patent in a patent
portfolio, after the Contribution is published in an Internet-
Draft, a disclosure must be made as soon as reasonably possible
after the IPR becomes reasonably and personally known to the
Contributor.
5.2.2. Timing of Disclosure Under Section 5.1.2
The IPR disclosure required pursuant to section 5.1.2 must be made as
soon as reasonably possible after the Contribution is made, unless
the required disclosure is already on file.
Participants who realize that IPR meeting the conditions of Section
5.6 may Cover technology that will be or has been incorporated into a
Contribution, or is seriously being discussed in a working group, are
strongly encouraged to make a preliminary IPR disclosure. That IPR
disclosure should be made as soon after coming to the realization as
reasonably possible, not waiting until the Contribution is actually
made.
If an IETF Participant first learns of IPR that meets the conditions
of Section 5.6 that may Cover a Contribution by another party, for
example a new patent application or the discovery of a relevant
patent in a patent portfolio, after the Contribution was made, an IPR
disclosure must be made as soon as reasonably possible after the
Contribution or IPR becomes reasonably and personally known to the
Participant.
5.2.3 Timing of Disclosure by ADs and Others
By the nature of their office, IETF Area Directors or persons
assisting them may become aware of Contributions late in the process
(for example at IETF Last Call or during IESG review) and, therefor
and in such cases, cannot reasonably be expected to disclose IPR
Covering those Contributions until they become aware of them.
5.3. How Must an IPR Disclosure be Made?
IPR disclosures must be made by following the instructions at
https://www.ietf.org/ipr-instructions. IPR disclosures and other
IPR-related information, including licensing information, must not be
included in RFCs or other IETF Contributions. The RFC Editor will
remove any IPR-related information from Contributions prior to
publication as an RFC.
Bradner & Contreras [Page 10]
Internet-Draft RFC 3979 bis March 2017
5.4. What Must be in an IPR Disclosure?
5.4.1. Content of IPR Disclosures
An IPR disclosure must include the following information to the
extent reasonably available to the discloser: (a) numbers of any
issued patents or published patent applications (or indicate that the
disclosure is based on unpublished patent applications) (b) the
name(s) of the inventor(s) (with respect to issued patents and
published patent applications), (c) the specific IETF Document(s) or
activity affected, and (d) if the IETF Document is an Internet-Draft,
its specific version number. In addition, if the IETF Document
includes multiple parts and it is not reasonably apparent which part
of such IETF Document is alleged to be Covered by the IPR in
question, it is helpful if the discloser identifies the sections of
the IETF Document that are alleged to be so Covered.
5.4.2. Updating IPR Disclosures
Those who disclose IPR should be aware that as Intetrnet-Drafts
evolve, text may be added or removed, and it is recommended that they
keep this in mind when composing text for disclosures.
A. Unless sufficient information to identify the issued patent was
disclosed when the patent application was disclosed, an IPR
disclosure must be updated or a new disclosure made promptly after
any of the following has occurred: (1) the publication of a
previously unpublished patent application, (2) the abandonment of
a patent application, (3) the issuance of a patent on a previously
disclosed patent application), (4) a material change to the IETF
Document covered by the Disclosure that causes the Disclosure to
be covered by additional IPR. If the patent application was
abandoned, then the new IPR disclosure must explicitly withdraw
any earlier IPR disclosures based on the application. IPR
disclosures against a particular Contribution are assumed to be
inherited by revisions of the Contribution and by any RFCs that
are published from the Contribution unless the disclosure has been
updated or withdrawn.
B. If an IPR holder files patent applications in additional countries
which refer to, and the claims of which are substantially
identical to, the claims of a patent or patent application
previously disclosed in an IPR disclosure, the IPR holder is not
required to make a new or updated IPR disclosure as a result of
filing such applications or the issuance of patents on such
applications.
C. New or revised IPR disclosures may be made voluntarily at any
Bradner & Contreras [Page 11]
Internet-Draft RFC 3979 bis March 2017
other time, provided that licensing information may only be
updated in accordance with Section 5.5.C.
D. Any person may submit an update to an existing IPR disclosure.
If such update is submitted by a person other than the submitter
of the original IPR disclosure (as identified by name and e-mail
address), then the IETF Secretariat shall attempt to contact the
original submitter to verify the update. If the original
submitter responds that the proposed update is valid, the
Secretariat will update the IPR disclosure accordingly. If the
original submitter responds that the proposed update is not valid,
the IETF Secretariat will not update the IPR disclosure. If the
original submitter fails to respond after the IETF Secretariat has
made three separate inquiries and at least 30 days have elapsed
since the initial inquiry was made, then the IETF Secretariat will
inform the submitter of the proposed update that the update was
not validated, and that the updater must produce legally
sufficient evidence that the submitter (or his/her employer) owns
or has the legal right to exercise control over the IPR subject to
the IPR disclosure. If such evidence is satisfactory to the IETF
Secretariat, after consultation with legal counsel, then the IETF
Secretariat will make the requested update. If such evidence is
not satisfactory, then the IETF Secretariat will not make the
requested update.
5.4.3. Blanket IPR Statements
The requirement to make an IPR disclosure is not satisfied by the
submission of a blanket statement that IPR may exist on every
Contribution or a general category of Contributions. 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 or commitment to license all
potential IPR Covering such technology under fair, reasonable 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 commitment to license all of its IPR meeting
the requirements of Section 5.6 (and either Section 5.1.1 or 5.1.2)
to implementers of an IETF specification on a royalty-free (and
otherwise reasonable and non-discriminatory) basis as long as any
other terms and conditions are disclosed in the IPR disclosure.
5.5. Licensing Information in an IPR Disclosure
A. Since IPR disclosures will be used by IETF working groups during
their evaluation of alternative technical solutions, it is helpful
if an IPR disclosure includes information about licensing of the
Bradner & Contreras [Page 12]
Internet-Draft RFC 3979 bis March 2017
IPR in case Implementing Technologies require a license.
Specifically, it is helpful to indicate whether, upon approval by
the IESG for publication as an RFC of the relevant IETF
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 other payment, or c)
without the need to obtain a license from the IPR holder (i.e.., a
covenant not to sue), which may or may not be suspended upon an
IPR assertion by the user of the Implementing Technology against
the licensor (i.e., defensive suspension).
B. The inclusion of a licensing declaration is not mandatory but it
is encouraged so that the working groups will have as much
information as they can during their deliberations. If the
inclusion of a licensing declaration in an IPR disclosure would
significantly delay its submission then the discloser may submit
an IPR disclosure without a licensing declaration and then submit
a new IPR disclosure when the licensing declaration becomes
available. IPR disclosures that voluntarily provide text that
includes licensing information, comments, notes, or URL for other
information may also voluntarily include details regarding
specific licensing terms that the IPR holder intends to offer to
implementers of Implementing Technologies, including maximum
royalties.
C. It is likely that IETF will rely on licensing declarations and
other information that may be contained in an IPR disclosure and
that implementers will make technical, legal and commercial
decisions on the basis of such commitments and information. Thus,
when licensing declarations and other information, comments,
notes, or URLs for further information are contained in an IPR
disclosure, the persons making such disclosure agree and
acknowledge that the commitments and information contained in such
disclosure shall be irrevocable, and will attach, to the extent
permissible by law, to the associated IPR, and all implementers of
Implementing Technologies will be justified and entitled to rely
on such materials in relating to such IPR, whether or not such IPR
is subsequently transferred to a third party by the IPR holder
making the commitment or providing the information. IPR holders
making IPR disclosures that contain licensing declarations or
providing such information, comments, notes or URLs for further
information must ensure that such commitments are binding on any
transferee of the relevant IPR, and that such transferee will use
reasonable efforts to ensure that such commitments are binding on
Bradner & Contreras [Page 13]
Internet-Draft RFC 3979 bis March 2017
a subsequent transferee of the relevant IPR, and so on.
D. Licensing declarations must be made by people who are authorized
to make such declarations as discussed in Section 5.6 of this
document.
5.6. Level of Control over IPR requiring Disclosure
IPR disclosures under Sections 5.1.1. and 5.1.2 are required with
respect to IPR (a) that is owned, directly or indirectly, by the
individual Contributor or his/her employer or sponsor (if any) or (b)
that such persons otherwise have the right to license or assert or
(c) from which such persons derive a direct or indirect pecuniary
benefit, or (d) as to which an individual Contributor is listed as an
inventor on the relevant patent or patent application.
5.7. Disclosures for Oral Contributions.
If a Contribution is oral and is not followed promptly by a written
disclosure of the same material, and if such oral Contribution would
be subject to a requirement that an IPR Disclosure be made had such
oral Contribution been written, then the Contributor must accompany
such oral Contribution with an oral declaration that he/she is aware
of relevant IPR in as much detail as reasonably possible, or file an
IPR Declaration with respect to such oral Contribution that otherwise
complies with the provisions of Sections 5.1 to 5.6 above.
5.8. General Disclosures.
The IETF may make available a public facility (e.g., a web page and
associated database) for the posting of IPR-related information and
disclosures that do not conform to the requirements of Sections 5.1
to 5.6 ("General Disclosures"). General Disclosures may include,
among other things, "blanket disclosures" described in Section 5.4.3
(other than blanket disclosures accompanied by royalty-free licensing
commitments, as permitted by Section 5.4.3), disclosures of IPR that
do not identify the specific IETF Documents Covered by the disclosed
IPR, and licensing statements or commitments that are applicable
generally and not to specific IPR disclosures. All of this
information may be helpful to the IETF community, and its disclosure
is encouraged. However, General Disclosures do not satisfy an IETF
Participant's obligation to make IPR disclosures as required by this
policy.
In some cases, if an IPR disclosure submitted by an IETF Participant
does not meet the requirements of this policy, the IETF may elect to
post the non-conforming IPR disclosure as a General Disclosure, in
order to provide the greatest amount of information to the IETF
Bradner & Contreras [Page 14]
Internet-Draft RFC 3979 bis March 2017
community. This action does not excuse the IETF Participant from
submitting a new IPR disclosure that conforms with the requirements
of Sections 5.1 to 5.6. The IETF reserves the right to decline to
publish General Disclosures that are not relevant to IETF activities,
that are, or are suspected of being, defamatory, false, misleading,
in violation of privacy or other applicable laws or regulations, or
that are in a format that is not suitable for posting on the IETF
facility that has been designated for General Disclosures.
6. Failure to Disclose
There may be cases in which 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 making a Contribution or participating in IETF activities,
a person who is not willing or able to disclose IPR for this reason,
or any other reason, must not contribute to or participate in IETF
activities with respect to technologies that he or she reasonably and
personally knows may be Covered by IPR which he or she will not
disclose, unless that person knows that his or her employer or
sponsor will make the required disclosures on his or her behalf.
Contributing to or participating in IETF activities about a
technology without making required IPR disclosures is a violation of
IETF policy.
In addition to any remedies or defenses that may be available to
implementers and others under the law with respect to such a
violation (e.g., rendering the relevant IPR unenforceable), sanctions
are available through the normal IETF processes for handling
disruptions to IETF work. See [RFC6701] for details regarding the
sanctions defined in various existing Best Current Practice
documents.
7. 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. However, to solve a given technical problem,
IETF working groups have the discretion to adopt a technology as to
which IPR claims have been made 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. To assist
these working groups, it is helpful for the IPR claimants to declare,
in their IPR Declarations, the terms, if any, on which they are
willing to license their IPR Covering the relevant IETF Documents.
When adopting new technologies, the participants in an IETF working
Bradner & Contreras [Page 15]
Internet-Draft RFC 3979 bis March 2017
group are expected to evaluate all the relevant tradeoffs from their
perspective. Most of the time these considerations are based purely
on technical excellence, but IPR considerations may also affect the
evaluation and specific licensing terms may affect the participants'
opinion on the desirability of adopting a particular technology.
The IETF has no official preference among different licensing terms
beyond what was stated at the beginning of this section. However, for
information and to assist participants in understanding what license
conditions may imply, what follows are some general observations
about some common types of conditions. The following paragraphs are
provided for information only:
When there is no commitment to license patents covering the
technology, this creates uncertainty that obviously is concerning.
These concerns do not exist when there is a commitment to license,
but the license terms can still differ greatly. Some common
conditions include 1) terms that are fair, reasonable and non-
discriminatory, and which may bear royalties or other financial
obligations (FRAND or RAND); 2) royalty-free terms that are otherwise
fair, reasonable and non-discriminatory (RAND-z); and 3) commitments
not to assert declared IPR. Open source projects, for instance, often
prefer the latter two. However, licenses often come with complex
terms that have to be evaluated in detail, and this crude
classification may not be sufficient to make a proper evaluation. For
instance, licenses may also include reciprocity and defensive
suspension requirements that require careful evaluation.
The level of use of a technology against which IPR is disclosed is
also an important factor in weighing IPR encumbrances and associated
licensing conditions against technical merits. For example, if
technologies are being considered for a mandatory-to-implement change
to a widely deployed protocol, the hurdle should be very high for
encumbered technologies, whereas a similar hurdle for a new protocol
could conceivably be lower.
IETF Working groups and IETF Areas may, however, adopt stricter
requirements in specific cases. For instance, the IETF Security Area
has adopted stricter requirements for some security technologies. It
has become common to have a mandatory-to-implement security
technology in IETF technology specifications. This is to ensure that
there will be at least one common security technology present in all
implementations of such a specification that can be used 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 technology can be specified in an IETF
specification unless it has no known IPR claims against it or a
Bradner & Contreras [Page 16]
Internet-Draft RFC 3979 bis March 2017
royalty-free license is available to implementers of the
specification. It is possible to specify such a technology in
violation of this principle if there is a very good reason to do so,
and if that reason is documented and agreed to through IETF
consensus. 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 at any
given time is not the same thing as the knowledge that there will be
no IPR disclosure in the future, or that no IPR Covers the relevant
technology. People or organizations not currently involved in the
IETF or people or organizations that discover IPR they feel to be
relevant in their patent portfolios can make IPR disclosures at any
time.
It should be noted that the validity and enforceability of any IPR
may be challenged for legitimate reasons outside the IETF. The mere
existence of an IPR disclosure should not be taken to mean that the
disclosed IPR is valid or enforceable or actually Covers a particular
Contribution. Although the IETF can make no actual determination of
validity, enforceability or applicability of any particular IPR, it
is reasonable that a working group or the IESG will take into account
on their own views of the validity, enforceability or applicability
of IPR in their evaluation of alternative technologies.
8. Change Control for Technologies
The IETF must have change control over the technology described in
any standards track IETF Documents in order to fix problems that may
be discovered or to produce other derivative works.
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 [RFC1790] and [RFC2339] for examples.)
Note that there is no inherent prohibition against a standards track
IETF Document making a normative reference to proprietary technology.
For example, a number of IETF Standards support proprietary
cryptographic transforms.
9. Licensing Requirements to Advance Standards Track IETF Documents
RFC 6410 [RFC6410] Section 2.2 states: "If the technology required to
implement the specification requires patented or otherwise controlled
technology, then the set of implementations must demonstrate at least
Bradner & Contreras [Page 17]
Internet-Draft RFC 3979 bis March 2017
two independent, separate and successful uses of the licensing
process. " A key word in this text is "requires." The mere
existence of disclosed IPR does not necessarily mean that licenses
are actually required in order to implement the technology.
10. No IPR Disclosures in IETF Documents
IETF Documents must not contain any mention of specific IPR. All
specific IPR disclosures must be submitted as described in Section 5.
Readers should always refer to the on-line web page to get a full
list of IPR disclosures received by the IETF concerning any
Contribution. (https://www.ietf.org/ipr/)
11. Application to non-IETF Stream Documents
This document has been developed for the benefit and use of the IETF
community. As such, the rules set forth herein apply to all
Contributions and IETF Documents that are in the "IETF Document
Stream" as defined in Section 5.1.1 of RFC 4844 (i.e., those that are
contributed, developed, edited and published as part of the IETF
Standards Process).
The rules that apply to documents in Alternate Streams are
established by the managers of those Alternate Streams (currently the
Internet Architecture Board (IAB), Internet Research Steering Group
(IRSG) and Independent Submission Editor, as specified in RFC 4844).
These managers may elect, through their own internal processes, to
cause this document to be applied to documents contributed to them
for development, editing and publication in their respective
Alternate Streams. If an Alternate Stream manager elects to adopt
this document, they must do so in a manner that is public and
notifies their respective document contributors that this document
applies to their respective Alternate Streams. In such case, each
occurrence of the term "Contribution," and "IETF Document" in this
document shall be read to mean a contribution or document in such
Alternate Stream, as the case may be. It would be advisable for such
Alternate Stream manager to consider adapting the definitions of
"Contribution," and other provisions in this document to suit their
particular needs.
12. Security Considerations
This document 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 there are no known issues of
security with IPR procedures.
Bradner & Contreras [Page 18]
Internet-Draft RFC 3979 bis March 2017
13. Changes Since RFC 3979 and RFC 4879
The material in RFC 3979 was significantly reorganized to produce
this document. This section reviews the actual changes in content
since RFC 3979 and does not detail the reorganization. These
changes are listed from the point of view of this document with
reference to the RFC 3979 section where useful. This Section is
intended only as an informational summary of the text contained in
Sections 1-12 of this document. This Section does not constitute
the official policy of IETF, and should not be referred to or
quoted as such. Any discrepancies or ambiguities shall be
resolved in favor of the language contained in Sections 1-12 of
this document.
Boilerplate -- since the document boilerplate formerly in BCP79
Sec. 5 has been moved to the Trust Legal Provisions since 2009,
deleted the boilerplate requirements from this document.
Section 1 - Definitions
1.a "Alternate Stream" definition (new): Added to enable
IRTF, IAB and RFC Editor streams to adopt and use BCP79
more easily.
1.b - "Contribution": (was 1.c)
Removed "IETF" to more easily enable other Streams to
adopt this policy
Added "intended to affect the IETF Standards Process" -
Addition needed to prevent information presentations
(e.g., plenary guest speakers) from being considered
Contributions.
Added BOFs, design teams, web sites, chat rooms -
Contributions can be made in any of these places
1.d "Covers" (was 1.n) -added provisional patent
applications - Required to eliminate ambiguity whether
provisional applications are included
1.f - "IETF documents" (was 1.h) - Limited to IETF (not
Alternate Stream) documents
1.g - "IETF Standards Process" (was 1.b) - Clarify that
Contributions can be made in contexts other than
traditional IETF standards development.
Bradner & Contreras [Page 19]
Internet-Draft RFC 3979 bis March 2017
1.h - "IPR" (was 1.o) - removed reference to copyrights,
database rights and data rights - Copyright in IETF
documents and contributions is addressed under RFC 5378
and is treated very differently than patents, which are
the focus of BCP79. Data/database rights not relevant to
IETF standards, and cannot be registered or disclosed in
the manner of patents.
1.j - "Internet Draft" (was 1.g) - reduced to reference RFC
2026 without additional description for clarity
1.k - "Participating in an IETF discussion or activity"
(new) - Due to numerous ambiguities over the years, it
was necessary to add a section describing what it means
to "participate" in an IETF activity
1.m - "RFC" (was 1.e) - Added cross-reference to RFC 2026
and eliminated textual description of RFC permanence
2. - Introduction - This added text that offers an overview
of why we have this policy, cut prior discussion of RFC 2026
Section 10 as no longer necessary & added references to
subsequent RFCs relating to IPR, including RFC 5378 and 6702
3. - Contributions to the IETF - Changed focus to participation
rather than making of contributions and explain why we
require IPR disclosure
old 3.2.1.C - Deleted because all required legends in IETF
documents are now described in RFC 5378 and Trust Legal
Provisions
3.3 - Obligations on Participants - Added to make clear that
participation in IETF obligates the participant to comply
with IETF rules
old 4A - Removed because inconsistent with current and
historical practice. Also, all legends in IETF documents
now addressed in Trust Legal Provisions.
4.A - The IESG, IAB - added IAB, ISOC and IETF Trust to
disclaimer
4.B - When the IETF Secretariat - Added description of current
procedure used to publish third party IPR disclosures
4.C - When an IPR disclosure ... - updated to reflect current
practice and roles (e.g., Secretariat rather than IETF Exec
Bradner & Contreras [Page 20]
Internet-Draft RFC 3979 bis March 2017
Dir).
4.D - Determination of Provision of Reasonable and Non-
discriminatory Terms (was 4.1) - Various edits made to this
paragraph to reflect current process for advancement of
standards.
old 5. - deleted as not needed
5.1.1 - Contributor's IPR in his or her Contribution (was
6.1.1) - Limits disclosure obligation to written
Contributions intended to be used as inputs to the IETF
Standards Process. - Oral disclosures are now covered in
Sec. 5.7.
5.1.2 - Contributions by others (was 6.1.2) - Revisions made
consistent with 5.1.1 above
5.1.3 - Voluntary IPR Disclosures (was 6.1.3) - Fixes
procedures for making voluntary IPR disclosures and adds
examples of when voluntary disclosures may be appropriate.
In addition to IPR of others, voluntary disclosures are
encouraged when an IETF Participant is aware of its own IPR
that covers IETF work in which it is not an active
participant, and when the technology is disclosed in other
than an IETF setting.
5.2.1 - Timing of Disclosure Under Section 5.1.1 (was 6.2.1) -
Trigger for disclosure changed from publication of a
Contribution in an I-D to "submitted or made", Lengthy
example regarding updates deleted in lieu of cross-reference
to Sec. 5.4.2 re. updates.
5.2.2 - Timing of Disclosure Under Section 5.1.2 (was 6.2.2)-
Corresponding changes made per 5.2.1
5.2.3 - Timing of Disclosure by ADs - Added to clarify AD
disclosure obligations
5.3 - IPR disclosures and other ... - Reflects current practice
re. prohibition of including IPR information directly in
IETF documents.
5.4.1 - Content of Disclosures (was 6.4.1) - added requirement
to disclose names of inventors - Disclosing the name(s) of
inventors on a patent will make it more likely that IETF
participants will recognize whether the inventor is an IETF
participant, and what IETF activities that individual
Bradner & Contreras [Page 21]
Internet-Draft RFC 3979 bis March 2017
participates in. This information is easy for the discloser
to provide, and less convenient for every reader of the IPR
disclosure to look up in patent office records (if even
available).
5.4.2 - Updating IPR Disclosures (was 6.4.2) - Significant
revisions and additional detail added regarding updating of
IPR disclosures upon events such as issuance of patents,
amendment of claims, employee changing jobs, employer
acquires another company, etc.
5.4.2.D - clarify that additional IPR disclosures are not
needed for foreign counterparts
5.4.3 - Blanket IPR Statements (was 6.4.3) - wording
clarifications plus changed "willingness" to "commitment" -
A blanket IPR disclosure which does not list specific patent
numbers is not compliant with this policy unless the
discloser commits (and is not just willing) to license such
patents on royalty-free and otherwise reasonable terms.
5.5.C - It is likely that IETF will rely ... - new paragraph -
Makes licensing declarations irrevocable so that they may be
relied upon in the future by implementers
5.5.D - Licensing declarations ... - new paragraph - Requires
that licensing declarations must be made by people
authorized to make them.
5.6 - Level of Control over IPR requiring disclosure (was 6.6)
- in addition to ownership of IPR, language added to require
disclosure when Participants derive a pecuniary benefit from
the IPR, or the individual is a listed inventor -
Clarifications to address situations not covered in earlier
version
5.7 - Disclosures for Oral Contributions - New section
describing procedure for oral contributions. Previously,
statements re. oral statements was contradictory. Some
places said that disclosures must be made for oral
statements, but others talk about disclosures only being
required following publication as an ID. Under new text,
oral statements don't trigger the normal IPR disclosure
obligations, as oral statements are inherently imprecise and
it's hard to know when they describe something covered by
the technical terms of a patent claim. However, if an oral
contribution is made and it is not followed by a written
contribution, then the oral discloser must either make a
Bradner & Contreras [Page 22]
Internet-Draft RFC 3979 bis March 2017
concurrent oral IPR disclosure or file a formal written
disclosure.
5.8 - General Disclosures - This new section describes the
IETF's public disclosure feature, which allows IPR
disclosures to be made by anyone, whether or not an IETF
participant. The feature has been up and running for years,
and this language describes its current implementation.
6 Failure to Disclose (was 7) - technical and clarity
corrections, as well as new language describing potential
remedies for failures to disclose IPR in accordance with
IETF rules, including IESG actions described in RFC 6701.
7. - Evaluating Alternative Technologies (was 8)
Para. 1 - minor wording changes for clarity
Para. 2-5 - new and relate to the considerations made by
IETF WGs when evaluating patent and licensing disclosures
concerning IETF standards
Para 6. - security technologies - New paragraph makes clear
that security is only one example of stricter
requirements. Also requires that violation of
requirements for royalty-free licensing in the security
area can be made only with IETF consensus.
Para 7-8 - (were paras 3-4) - Wording changes for clarity
9. - Licensing Requirements (was 10) - Wording updated to
reflect RFC 6410
10. - No IPR Disclosures in IETF Documents (was 11) - Wording
simplified to refer to Section 5.
11. - Application to non-IETF Stream Documents - new - Adds
procedures to be followed by Alternate Stream (IAB, IRTF,
RFC Ed) managers to adopt these rules and procedures.
Borrowed and adapted the copyright language used in the
Trust Legal Provisions. Each alternate stream (Independent,
IRTF and IAB) would need to take some action (preferably
issuing an RFC) to adopt BCP 79 for its stream. This was
done with copyright already, and pretty smoothly.
14. References
14.1. Normative References
Bradner & Contreras [Page 23]
Internet-Draft RFC 3979 bis March 2017
[RFC2026] Bradner, S., "The Internet Standards Process --
Revision 3", BCP 9, RFC 2026, October 1996.
[RFC2028] Hovey, R. and S. Bradner, "The Organizations
Involved in the IETF Standards Process", BCP 11, RFC
2028, October 1996.
[RFC4844] Daigle, L. Ed. and Internet Architecture Board,
"The RFC Series and RFC Editor", RFC 4844, July 2007.
[RFC6410] Housley, R., D. Crocker, and E. Burger, "Reducing
the Standards Track to Two Maturity Levels", RFC 6401,
October 2011.
14.2. Informative References
[RFC1790] 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.
[RFC2339] The Internet Society and 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.
[RFC5378] Bradner, S. Ed, J. Contreras, Ed, "Rights
Contributors Provide to the IETF Trust", RFC 5378,
November 2008
[RFC6701] Farrel, A., and P. Resnick, "Sanctions Available
for Application to Violators of IETF IPR Policy", RFC
6702, August 2012
[RFC6702] Polk, T. and P. Saint-Andre, "Promoting Compliance
with Intellectual Property Rights (IPR)Disclosure Rules",
RFC 6702, August 2012
IANA Considerations
This document requires no action by the IANA. [this section
should be removed for publication]
15. Editor's Addresses
Scott Bradner
15 High St.
Cambridge MA, 02138
Phone: +1 202 558 5661
Bradner & Contreras [Page 24]
Internet-Draft RFC 3979 bis March 2017
EMail: sob@sobco.com
Jorge Contreras
University of Utah
S.J. Quinney College of Law
383 South University St.
Salt Lake City, UT 84112
Email: cntreras@gmail.com
Bradner & Contreras [Page 25]