| Rfc | 8179 |
|---|
| Title | Intellectual Property Rights in IETF Technology |
|---|
| Author | S. Bradner, J.
Contreras |
|---|
| Date | May 2017 |
|---|
| Format: | TXT, HTML |
|---|
| Obsoletes | RFC3979,
RFC4879 |
|---|
| Updates | RFC2026 |
|---|
| Also | BCP0079 |
|---|
| Status: | BEST CURRENT
PRACTICE |
|---|
|
Internet Engineering Task Force (IETF) S. Bradner
Request for Comments: 8179 Harvard University
BCP: 79 J. Contreras
Obsoletes: 3979, 4879 University of Utah
Updates: 2026 May 2017
Category: Best Current Practice
ISSN: 2070-1721
Intellectual Property Rights in IETF Technology
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 RFCs 3979 and 4879.
Status of This Memo
This memo documents an Internet Best Current Practice.
This document is a product of the Internet Engineering Task Force
(IETF). It represents the consensus of the IETF community. It has
received public review and has been approved for publication by the
Internet Engineering Steering Group (IESG). Further information on
BCPs is available in Section 2 of RFC 7841.
Information about the current status of this document, any errata,
and how to provide feedback on it may be obtained at
http://www.rfc-editor.org/info/rfc8179.
Copyright Notice
Copyright (c) 2017 IETF Trust and the persons identified as the
document authors. All rights reserved.
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. Code Components extracted from this document must
include Simplified BSD License text as described in Section 4.e of
the Trust Legal Provisions and are provided without warranty as
described in the Simplified BSD License.
Table of Contents
1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . 4
2. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . 6
3. Participation in the IETF . . . . . . . . . . . . . . . . . . 8
3.1. General Policy . . . . . . . . . . . . . . . . . . . . . . 8
3.2. Rights and Permissions in Contributions. . . . . . . . . . . 8
3.3. Obligations on Participants . . . . . . . . . . . . . . . . 8
4. Actions for Documents for Which IPR Disclosure(s)
Have Been Received . . . . . . . . . . . . . . . . . . . . . 8
5. IPR Disclosures . . . . . . . . . . . . . . . . . . . . . . . 10
5.1. Who Must Make an IPR Disclosure? . . . . . . . . . . . . . . 10
5.1.1. A Contributor's IPR in His or Her Contribution . . . . . 10
5.1.2. An IETF Participant's IPR in Contributions by Others . . 10
5.1.3. IPR of Others . . . . . . . . . . . . . . . . . . . . . . 10
5.2. The Timing of Providing Disclosure . . . . . . . . . . . . . 11
5.2.1. Timing of Disclosure under Section 5.1.1 . . . . . . . . . 11
5.2.2. Timing of Disclosure under Section 5.1.2 . . . . . . . . . 11
5.2.3. Timing of Disclosure by ADs and Others . . . . . . . . . . 12
5.3. How Must an IPR Disclosure be Made? . . . . . . . . . . . . 12
5.4. What Must be in an IPR Disclosure? . . . . . . . . . . . . . 12
5.4.1. Content of IPR Disclosures . . . . . . . . . . . . . . . . 12
5.4.2. Updating IPR Disclosures . . . . . . . . . . . . . . . . . 12
5.4.3. Blanket IPR Statements . . . . . . . . . . . . . . . . . . 13
5.5. Licensing Information in an IPR Disclosure . . . . . . . . . 14
5.6. Level of Control over IPR Requiring Disclosure . . . . . . . 15
5.7. Disclosures for Oral Contributions . . . . . . . . . . . . . 15
5.8. General Disclosures . . . . . . . . . . . . . . . . . . . . 15
6. Failure to Disclose . . . . . . . . . . . . . . . . . . . . . 16
7. Evaluating Alternative Technologies in IETF Working Groups . . 17
8. Change Control for Technologies . . . . . . . . . . . . . . . 19
9. Licensing Requirements to Advance Standards Track
IETF Documents . . . . . . . . . . . . . . . . . . . . . . . . 19
10. No IPR Disclosures in IETF Documents . . . . . . . . . . . . 19
11. Application to Non-IETF Stream Documents . . . . . . . . . . 19
12. Security Considerations . . . . . . . . . . . . . . . . . . 20
13. Changes since RFCs 3979 and 4879 . . . . . . . . . . . . . . 20
14. References . . . . . . . . . . . . . . . . . . . . . . . . . 25
14.1. Normative References . . . . . . . . . . . . . . . . . . . 25
14.2. Informative References . . . . . . . . . . . . . . . . . . 26
Editors' Addresses . . . . . . . . . . . . . . . . . . . . . . . 26
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. "Blanket IPR Statement" or "Blanket Disclosure": see Section
5.4.3.
c. "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 any IETF plenary session,
o any IETF working group (WG; see BCP 25) 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. And while the IETF's IPR rules apply in all
cases, not all presentations represent a Contribution. For
example, many invited plenary, area-meeting, or research group
presentations will cover useful background material, such as
general discussions of existing Internet technology and products,
and will not be a Contribution. (Some such presentations can
represent a Contribution as well, of course). 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, email
messages, discussion board postings, slide presentations, text
messages, instant messages, and transcriptions of oral statements.
d. "Contributor": an individual submitting a Contribution
e. "Covers" or "Covered": 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.
f. "General Disclosure": see Section 5.8.
g. "IETF": In the context of this document, the IETF includes all
individuals who participate in meetings, working groups, mailing
lists, functions, and other activities that 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.
h. "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 [RFC4844].
i. "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 and Experimental documents (see Section 4 of
[RFC2026]).
j. "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.
See [RFC5378] for a discussion of trademarks.
k. "Implementing Technology": a technology that implements an IETF
specification or standard.
l. "Internet-Draft": a document used in the IETF and RFC Editor
processes, as described in Section 2.2 of [RFC2026].
m. "Participating in an IETF discussion or activity": 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.
m. "Reasonably and personally known": 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.
o. "RFC": the basic publication series for the IETF. RFCs are
published by the RFC Editor. (See Section 2.1 of [RFC2026].)
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.
There are three basic principles regarding how the IETF deals with
claims of Intellectual Property Rights (originally outlined in
Section 10 of [RFC2026]):
(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 a 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 any 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
Participant that are 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 the 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
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 the 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 the
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
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 (e.g., the assurance of
reasonable and non-discriminatory terms) have 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 Internet 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 Internet Standard
has been achieved, the IESG will presume 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
based on such written Contribution, must make a disclosure in
accordance with 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 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 when (a) 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.
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 is 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, therefore
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.
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) the 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 it is not reasonably
apparent which part of an IETF Document is allegedly Covered by
disclosed IPR, then it is helpful if the discloser identifies the
sections of the IETF Document that are allegedly Covered by such
disclosed IPR.
5.4.2. Updating IPR Disclosures
Those who disclose IPR should be aware that as Internet-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, or (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
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 email
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 the IETF 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
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 (e.g., a
covenant not to sue with or without defensive suspension, as
described in Section 7).
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 URLs 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
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
As described in Section 5.3, the IETF will make available a public
facility (e.g., a web page and associated database) for the posting
of IPR disclosures conforming with the disclosure requirements of
this policy. In addition, the IETF may make available a public
facility for the posting of other IPR-related information and
disclosures that do not satisfy the requirements of this policy but
which may otherwise be informative and relevant to the IETF ("General
Disclosures"). Such General Disclosures may include, among other
things, "blanket disclosures" that do not contain a royalty-free
licensing commitment as described in 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
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.
A. When adopting new technologies, the participants in an IETF
working 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.
B. 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:
C. 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, possibly conditional on
reciprocity. Open source projects, for instance, often prefer the
latter two. Note that 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.
D. 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.
E. 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 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.
F. 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.
G. 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 individuals in a working
group or the IESG will take into account 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
Section 2.2 of RFC 6410 [RFC6410] states:
If the technology required to implement the specification requires
patented or otherwise controlled technology, then the set of
implementations must demonstrate at least 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 online web page
<https://www.ietf.org/ipr/> to get a full list of IPR disclosures
received by the IETF concerning any Contribution.
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 [RFC4844] (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
[RFC4844]). 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 managers 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 the 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.
13. Changes since RFCs 3979 and 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 the 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 Section 5 of
RFC 3979 has been moved to the Trust Legal Provisions since 2009,
the boilerplate requirements have been deleted from this document.
1 - Definitions
1.a - "Alternate Stream" definition (new): Added to enable IRTF,
IAB, and Independent Submission streams to adopt and use BCP 79
more easily.
1.c - "Contribution" (was 1.c)
Removed "IETF" to more easily enable other Streams to adopt
this policy.
Added "intended to affect the IETF Standards Process", which
is needed to prevent information presentations (e.g.,
plenary guest speakers) from being considered Contributions.
Added BOF, design team, web site, and chat room.
Contributions can be made in any of these places.
1.e - "Covers" (was 1.n) - Added "provisional patent application"
- Required to eliminate ambiguity whether provisional
applications are included.
1.h - "IETF Documents" (was 1.h) - Limited to IETF (not Alternate
Stream) documents.
1.i - "IETF Standards Process" (was 1.b) - Clarify that
Contributions can be made in contexts other than traditional
IETF standards development.
1.j - "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 BCP 79.
Data/database rights not relevant to IETF standards, and cannot
be registered or disclosed in the manner of patents.
1.l - "Internet-Draft" (was 1.g) - Reduced to reference RFC 2026
without additional description for clarity.
1.m - "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.o - "RFC" (was 1.e) - Added cross-reference to RFC 2026 and
eliminated textual description of RFC permanence.
2 - Introduction - Added text that offers an overview of why we have
this policy, cut prior discussion of Section 10 of RFC 2026 as no
longer necessary, and added references to subsequent RFCs relating
to IPR, including RFC 5378 and 6702.
3 - Participation in the IETF (was "Contributions to the IETF") -
Changed focus to participation rather than making of Contributions
and explained 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 4.A - Removed because inconsistent with current and historical
practice. Also, all legends in IETF Documents are 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 Dir).
4.D - Determination of Provision of Reasonable and Non-discriminatory
Terms (was Section 4.1) - Various edits made to this paragraph to
reflect current process for advancement of standards.
old 5 - Deleted because it was not needed.
5.1.1 - Contributor's IPR in His or Her Contribution (was Section
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 Section 5.7.
5.1.2 - An IETF Participant's IPR in Contributions by Others (was
Section 6.1.2) - Revisions made consistent with Section 5.1.1
above.
5.1.3 - Voluntary IPR Disclosures (was Section 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 Section 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 Section
5.4.2 regarding updates.
5.2.2 - Timing of Disclosure under Section 5.1.2 (was Section 6.2.2)
- Corresponding changes made per Section 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
regarding prohibition of including IPR information directly in
IETF Documents.
5.4.1 - Content of IPR Disclosures (was Section 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 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 Section 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 Section 6.4.3) - wording
clarifications and 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 Section
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): Describes procedure
for oral Contributions. Previously, statements regarding oral
statements were contradictory. Some places said that disclosures
must be made for oral statements, but others talk about
disclosures only being required following publication as an I-D.
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
concurrent oral IPR disclosure or file a formal written
disclosure.
5.8 - General Disclosures (new) - 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 Section 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 in IETF Working Groups (was
Section 8).
Paragraph 1 - Minor wording changes for clarity.
Paragraphs 2-5 (new) - Relate to the considerations made by IETF
WGs when evaluating patent and licensing disclosures
concerning IETF standards.
Paragraph 6 - security technologies (new) - 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.
Paragraphs 7-8 (were paragraphs 3-4) - Wording changes for
clarity.
9 - Licensing Requirements to Advance Standards Track IETF Documents
(was Section 10) - Wording updated to reflect RFC 6410.
10 - No IPR Disclosures in IETF Documents (was Section 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, Independent
Submission) managers to adopt these rules and procedures.
Borrowed and adapted the copyright language used in the Trust
Legal Provisions. Each Alternate Stream (Independent Submission,
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
[RFC2026] Bradner, S., "The Internet Standards Process -- Revision
3", BCP 9, RFC 2026, DOI 10.17487/RFC2026, October 1996,
<http://www.rfc-editor.org/info/rfc2026>.
[RFC2028] Hovey, R. and S. Bradner, "The Organizations Involved in
the IETF Standards Process", BCP 11, RFC 2028,
DOI 10.17487/RFC2028, October 1996,
<http://www.rfc-editor.org/info/rfc2028>.
[RFC4844] Daigle, L., Ed., and Internet Architecture Board, "The RFC
Series and RFC Editor", RFC 4844, DOI 10.17487/RFC4844,
July 2007, <http://www.rfc-editor.org/info/rfc4844>.
[RFC6410] Housley, R., Crocker, D., and E. Burger, "Reducing the
Standards Track to Two Maturity Levels", BCP 9, RFC 6410,
DOI 10.17487/RFC6410, October 2011,
<http://www.rfc-editor.org/info/rfc6410>.
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, DOI 10.17487/RFC1790, April 1995,
<http://www.rfc-editor.org/info/rfc1790>.
[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, DOI 10.17487/RFC2339, May 1998,
<http://www.rfc-editor.org/info/rfc2339>.
[RFC5378] Bradner, S., Ed., and J. Contreras, Ed., "Rights
Contributors Provide to the IETF Trust", BCP 78, RFC 5378,
DOI 10.17487/RFC5378, November 2008,
<http://www.rfc-editor.org/info/rfc5378>.
[RFC6701] Farrel, A. and P. Resnick, "Sanctions Available for
Application to Violators of IETF IPR Policy", RFC 6701,
DOI 10.17487/RFC6701, August 2012,
<http://www.rfc-editor.org/info/rfc6701>.
[RFC6702] Polk, T. and P. Saint-Andre, "Promoting Compliance with
Intellectual Property Rights (IPR) Disclosure Rules",
RFC 6702, DOI 10.17487/RFC6702, August 2012,
<http://www.rfc-editor.org/info/rfc6702>.
Editors' Addresses
Scott Bradner
15 High St.
Cambridge, MA 02138
United States of America
Phone: +1 202 558 5661
Email: sob@sobco.com
Jorge Contreras
University of Utah
S.J. Quinney College of Law
383 South University St.
Salt Lake City, UT 84112
United States of America
Email: cntreras@gmail.com