Standards patent strife spreads

Buoyed by signs of success within the World Wide Web Consortium (W3C), opponents of royalty-encumbered standards are pushing to change the policy within the Internet Engineering Task Force (IETF).

With efforts to add an exception to the W3C's royalty-free policy at an apparent standstill, advocates see in a newly formed working group the opportunity to prevent the incorporation of patented technologies in IETF drafts.

The push to spread the royalty-free religion to the IETF has cheered engineers and standards advocates who oppose the adoption of patented technologies.

"I'm hoping that the IETF follows the W3C's lead," said Carl Cargill, director of standards for Sun Microsystems. "You can't have a network with a lot of royalties. That has an enormously chilling effect on invention and use, because if you don't know how much you're going to be charged, you'll probably use something else."

The IETF formed its new intellectual property rights (IPR) working group following a contentious meeting in Yokohama, Japan, this summer in which participants questioned the IETF's current policy that neither restricts nor discourages the use of patented technology in standards.

The meeting was called with the specific goal of clarifying certain aspects of the IETF's current policy, rather than changing it to reflect a royalty-free bias or restriction. But anti-patent speakers at the meeting were vocal in their support of the fundamental shift away from patented contributions.

"All of these documents with respect to licensing terms refer to reasonable and nondiscriminatory (RAND)," said one participant. "'Reasonable and nondiscriminatory' doesn't really mean very much. What's reasonable to one person is unreasonable to another...There should be some guidance to working groups."

The W3C has been reviewing its royalty-free policy under the glare of publicity for the past year, following a controversial attempt to push through an exception to the policy. The exception would be for the RAND licenses referred to by the Yokohama meeting participant.

Patent protest
The effort to modify the W3C policy has withered in the heat of public protest, primarily by individual engineers and those representing smaller companies--whose patent portfolios cannot compete with the likes of Microsoft and IBM--but also by large companies like Sun that object in principle to patents in standards.

The IETF's current policy offers no particular guidance to working groups contemplating the implementation of patented technologies. Instead, it mandates that members disclose whether technologies they submit for inclusion in IETF drafts are "encumbered" by patents. The new working group's primary task is to eliminate confusion over the disclosure requirement.

Failure by standards organization members to disclose intellectual property restrictions to their contributions has landed some companies in hot water with federal courts and agencies. Rambus, for example, is the target of several lawsuits alleging it failed to make appropriate disclosures, including a recent suit by the Federal Trade Commission.

The IETF's current patent-agnostic policy, which dates from 1996, won out over a competing clause that would have discouraged the adoption of patented technologies while permitting them at a working group's discretion.

While the new working group is not assigned to examine an IETF ban on patented technologies, it does leave the door open to re-evaluate the current policy permitting their use.

"There's a substantial part of the community that doesn't like patents at all and wants to avoid using them at all, to go back to the original standard," said Steve Bellovin, a researcher at AT&T Labs Research in Florham Park, N.J., and co-chair of the IETF's IPR working group. "If the WG determines that there should be a change, we'll recharter and try to broaden our membership--this is an issue that affects the whole IETF, so we need very broad consensus."