As it happens the long-time claim that the IETF's actions
have no effect on
the patentability of status of IP, is about as mush horse
pucky as there
possibly could be... So the release statement needs boiler
plate
acknowledging that there is a patent timing issue started by
the formal
publication of the IP by the IETF and that the submitter
releases the IETF
from any liability it incurs by this publication...
-----
Btw - Side note: this a is a killer timeline of the
patent's processed
through history and the last thirty years of it are
especially
interesting...
http://www.economicadventure.org/teachers/les
sons/DwyerTimeline.pdf
When a public disclosure is made in an industry publication,
that material
would be considered a FIRST PUBLICATION event and because of
this that
publication would be considered PRIOR ART by the US Patent
Office, and for
guidance like this, the USPEM (The Patent Examiners Manual)
is pretty clear
that any public disclosure starts the patent-clock timers
running.
This is a reasonable timeline http://www.bpmle
gal.com/pattime.html for a
patent application process - notice it starts with first
public
disclosure... That is not public in the sense that its on
CNN or NBC in
prime time, but that it is formally disclosed to a group
that would
constitute an understanding audience i.e. as in published
before the IETF's
WG's or larger across WG Constituency... Likewise I am
betting that the
First Publication which triggers the timers would actually
include
commentary in NoteWell considering the audience, and
certainly the
publication of an I-D would trigger this clock running.
The problem is simple, nowhere is this noted or are there
any assumptions of
liability by the submitter to protect the IETF from the
damage that
publishing a draft with IP that someone else owns. Hell, it
could
conceivably be prosecuted under the Economic Espionage Act
IMHO if the
Justice Department really wanted to.
See Ghent Uninversitet -
http://www.uge
nt.be/en/research/technology%20transfer/researchers/patent%2
0issues/patent%20process
Its the same over the rest of the EU. Also see the
www.epo.org site for more
details.
In Japan (http://www.jpo.go.jp/) the
mere first publishing terminates any
patentability... although that also may be changing under
the Trilateral
Patent Organization - http://www.trilateral.net/
In the EU there are similar
restrictions to the US models, but the point is that Patent
Protection is
not setup uniformly across all countries...
So my call is that the IETF ***MUST*** assume the worst case
scenario in all
of its operating documents, and that is that this document
is someone else's
IP. That said the release language needs to be MUCH
TOUGHER... and in fact
contractually bind the submitter to protect the IETF from
any damages from
the illegal submission and wrongful publication of
un-released IP's.
This isn't fantasy - its smart business and in today's
world, being an
Ostrich just gets you plucked and roasted.
Todd
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