Software Patents: IETF Standards (Part 6)

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.

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