For now, the IETF has not changed its policy about using patented technologies in the standards process. The tension between the IETF and the open source community will likely increase as open source software continues to grow in popularity.
The Internet Engineering Task Force (IETF) (http://www.ietf.org/) is the group that defines Internet Standards (STDs) such as FTP (http://ftp.rfc-editor.org/in-notes/rfc959.txt), SMTP (http://ftp.rfc-editor.org/in-notes/rfc821.txt), and PPP (http://ftp.rfc-editor.org/in-notes/rfc1661.txt). The Standards documents (STDs – a subset of all RFCs and often referred to by their RFC number not their STD number) help make the efficient interoperability of the Internet possible.
In April 2003, an attempt to persuade the IETF to abandon its use of patented technologies failed (http://news.com.com/2100-1013-996351.html). The IETF decided to continue to let its Working Groups use patented technologies in the Standards process on a RAND (Reasonable And NonDiscriminatory) license basis (http://www.ietf.org/IESG/Section10.txt).
Historically, the IETF has been neutral about using patents in the Standards process, and its position is summed up best in the charter of the IPR Working Group (http://www.ietf.org/html.charters/ipr-charter.html):
“The IETF and the Internet have greatly benefited from the free exchange of ideas and technology. For many years the IETF normal behavior was to standardize only unencumbered technology.
While the ‘Tao’ of the IETF is still strongly oriented toward unencumbered technology, we can and do make use of technology that has various encumbrances. One of the goals of RFC2026 ‘The Internet Standards Process — Revision 3’ was to make it easier for the IETF to make use of encumbered technology when it made sense to do so.”
The IPR Working Group is now working on clarifying how contributors should disclose patented technologies in the Standards process (http://www.ietf.org/ipr.html).
It is worth noting that two documents in the IETF’s RFC database mention patents. The first is RFC 1822, an informational RFC, dated 08/95 (http://ftp.rfc-editor.org/in-notes/rfc1822.txt), entitled “A Grant of Rights to Use a Specific IBM patent with Photuris.” The patent in question, U.S. patent 5,148,479, relates to the Photuris key management protocol. The purpose section of RFC 1822 states:
“This Request for Comments records a grant by IBM Corporation to permit the conditional free use of one of its patents. This grant is made to help facilitate adoption of the Internet Key Management Protocol contribution IBM has offered to the IETF. It should be noted that the confirmatory license mentioned is optional. The grant is made in this RFC and parties have it even if they do not request a confirmation from IBM.”
Few websites (and none of the websites that I’ve cited in this series of posts about software patents) mention this patent (http://www.google.com/search?as_q=5148479).
Similarly, in 1996, Hewlett Packard granted rights in U.S. Patents 5,293,635 and 5,421,024 (http://ftp.rfc-editor.org/in-notes/rfc1988.txt). Again, no major websites mention either patent (http://www.google.com/search?as_q=5293635) (http://www.google.com/search?as_q=5421024).
For open source developers, RAND licenses on Standards could be cost prohibitive. For commercial concerns, a royalty-free environment would provide no financial incentive for contributing technologies to the Standards process. The IETF is not likely to change U.S. patent law, but it could certainly change its policy on using patents, software or otherwise, in the Standards process. The tension between the IETF and the open source community will likely increase as open source software continues to grow in popularity.
Related Posts
- Software Patents: Good Or Evil? (Part 1) (6/15/2003)
This week, I am speaking at the fourth annual Law and Technology Conference at the Technology Law Center of the University of Maine School of Law. I am taking a non-standard approach to this presentation. Rather than preparing PowerPoint slides (or the like), I will be posting a series of notes on my website. - Software Patents: Principled Dialog (Part 2) (6/15/2003)
Whatever your position on software patents, or on patents in general, one thing is clear. Principled arguments are more interesting than unprincipled arguments. - Software Patents: Examples Of Unprincipled Arguments (Part 3) (6/15/2003)
Many educated people are opposed to software patents, but few make principled arguments to support their positions. - Software Patents: Examples Of Principled Arguments (Part 4) (6/15/2003)
The two most fascinating principles on which software patent proponents base their arguments are that 1) open source software is better than proprietary software and 2) free software is better than open source software. - Software Patents: Copyright Law Expansion And Lessig’s Software Patent Non Sequitur (Part 5) (6/15/2003)
Lessig argues convincingly for limiting the extension of copyright terms but argues unconvincingly against software patents. - Software Patents: IETF Standards (Part 6) (6/15/2003)
For now, the IETF has not changed its policy about using patented technologies in the standards process. The tension between the IETF and the open source community will likely increase as open source software continues to grow in popularity. - Software Patents: W3C Standards (Part 7) (6/16/2003)
The open source community has generally viewed the W3C’s decision on patents in standards as a victory. - Software Patents: Final HERTS (Hypotheticals, Examples, Rants, Thoughts, And Stats) (Part 8) (6/16/2003)
Using open source software is a bit like reading Entertainment Weekly. Lots of people do it but few admit it. Plus other observations that didn’t fit anywhere else. - Software Patents Epilogue (7/16/2003)
The 2003 Law and Technology Conference at the Technology Law Center of the University of Maine School of Law was the most fun I’ve had at a conference in years.
