"1. There is a patent license from NIST [1] claiming ML-KEM is covered by
patents.  Thanks Bas for pointing out that none of I-D's has a IETF IPR
disclosures on them.  I am surprised nobody has notified the IETF about
this already, so I submitted a third-party IPR disclosure update using
the IETF IPR web form, to make people aware of the claims.  It is
probably stuck in the IETF IPR queue somewhere."

It is a fantastic idea to include an IPR disclosure with proper references.
(It's likely good to avoid 'interpreting' legal documents in any IETF
official document, aside from pointing to the relevant references.)

--

" 2. The patent license says (roughly) that it applies when you implement
the NIST ML-KEM specifiction, and implicitly: that the license does not
apply otherwise.  It is unclear to what extent NIST intends ML-KEM to be
used in multiple key-establishments, see for example the 'Summary' page
of [2] requesting that 'NIST should mandate that ephemeral encapsulation
keys are used in exactly one key-establishment transaction'.  I agree
with that recommendation, but I'm not sure if it will go anywhere.  The
Ml-KEM specification only talks about a two-party setup, not for
multi-party setups.  NIST SP 800-56A says an ephemeral private key shall
only be used in one key-establishment."

Yes: The original intent was that prior IPR claims from the two patents
(Ding+CNRS) would be waived, in the case that implementers follow the NIST
specification of ML-KEM as-is, without modification.
It was fully expected that "variations-on-the-theme" that don't conform to
FIPS 203 ( https://csrc.nist.gov/pubs/fips/203/final ) would still be
subject to the original patent claims.

--

" 3. My take of that is that adapting ML-KEM for non-ephemeral and/or
multi-party/session mode and staying within the NIST patent license
isn't well-specified.  That is the limit of the ML-KEM patent license
that I referred to."

ML-KEM use for these modes is described in
https://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-227.pdf
on page 16 (paragraph beginning "Static versus ephemeral key pairs" under
the bold-paragraph "Additional considerations). Note that SP 800-227 is
cited in https://nvlpubs.nist.gov/nistpubs/FIPS/NIST.FIPS.203.pdf as
Reference 1.

---

That all said, I sort of now default back to what others have said (more or
less) further down the thread:

I (still) support this document change, for reasons totally unrelated to
the ML-KEM patent license.


On Thu, Mar 26, 2026 at 6:50 AM Simon Josefsson <[email protected]> wrote:

> Daniel Apon <[email protected]> writes:
>
> > I'll be honest; I don't remotely understand how to interpret the English
> of
> > this sentence:
> >
> > " This all seems motivated by insuring against the ML-KEM patent license
> > that limits for what ML-KEM can be used for, to allow the IETF to say
> > "oh but TLS does not allow ephemeral key shared so we don't care about
> > that use-case". "
> >
> > What "*limits*" on the ML-KEM patent license are you referring to?
>
> I'll try to explain my position -- Eric apparently interpreted what I
> wrote in exactly the opposite way to what I intended, suggesting
> something was missing.
>
> 1. There is a patent license from NIST [1] claiming ML-KEM is covered by
> patents.  Thanks Bas for pointing out that none of I-D's has a IETF IPR
> disclosures on them.  I am surprised nobody has notified the IETF about
> this already, so I submitted a third-party IPR disclosure update using
> the IETF IPR web form, to make people aware of the claims.  It is
> probably stuck in the IETF IPR queue somewhere.
>
> 2. The patent license says (roughly) that it applies when you implement
> the NIST ML-KEM specifiction, and implicitly: that the license does not
> apply otherwise.  It is unclear to what extent NIST intends ML-KEM to be
> used in multiple key-establishments, see for example the 'Summary' page
> of [2] requesting that 'NIST should mandate that ephemeral encapsulation
> keys are used in exactly one key-establishment transaction'.  I agree
> with that recommendation, but I'm not sure if it will go anywhere.  The
> Ml-KEM specification only talks about a two-party setup, not for
> multi-party setups.  NIST SP 800-56A says an ephemeral private key shall
> only be used in one key-establishment.
>
> 3. My take of that is that adapting ML-KEM for non-ephemeral and/or
> multi-party/session mode and staying within the NIST patent license
> isn't well-specified.  That is the limit of the ML-KEM patent license
> that I referred to.
>
> 4. Having the TLS spec allow non-ephemeral modes could thus be a problem
> from a deployment perspective, where some implementations could use
> ML-KEM-derived KEM's in a non-ephemeral mode, and some couldn't.
>
> 5. The text already says SHOULD NOT, and the feature isn't sufficiently
> important to Internet security to motivate a loop-hole, and the feature
> breaks Perfect-Forward-Secrecy (which is a useful property), so changing
> it to MUST NOT allows us all to just say "please no" to non-ephemeral
> uses of ML-KEM keys citing the TLS spec requirement as an argument.  If
> better specifications on how to actually solve this problem materialize
> (inspired by KEMTLS?), they can agument this requirement keyword.  I
> think there is useful technology here, but not ready yet.
>
> Even if this wasn't Eric's motivation, this all seems like a reasonable
> and useful motivation for changing the text to me.  It will be an
> argument that I will use when someone suggest to optimize ML-KEM by
> re-using the private key for multiple sessions.  I don't follow what
> Eric means that this argument would reflect badly on anyone, and I'm
> hoping that was a misunderstanding that this e-mail improves on.  I
> believe the argument would reflect well on the people using it.
>
> There are many other reasonable positions to end up in that are
> different from the one above.  A simple approach of "The ML-KEM patents
> are nonsense and I don't care about them" solves many concerns, and may
> be the most pragmatic and common opinion right now.
>
> /Simon
>
> [1]
> https://csrc.nist.gov/csrc/media/Projects/post-quantum-cryptography/documents/selected-algos-2022/nist-pqc-license-summary-and-excerpts.pdf
>
> [2]
> https://csrc.nist.gov/csrc/media/Presentations/2025/ml-kem-is-great/images-media/ml-kem-is-great.pdf
>
> > On Tue, Mar 24, 2026 at 12:43 PM Eric Rescorla <[email protected]> wrote:
> >
> >>
> >>
> >> On Tue, Mar 24, 2026 at 3:20 AM Simon Josefsson <simon=
> >> [email protected]> wrote:
> >>
> >>> Viktor Dukhovni <[email protected]> writes:
> >>>
> >>> > On Mon, Mar 23, 2026 at 04:40:14PM -0400, Sean Turner wrote:
> >>> >
> >>> >> This message starts a two week consensus call on whether
> >>> >> draft-ietf-tls-rfc8446bis should prohibit key share reuse between
> >>> >> connections. ekr has already produced a PR; see [1]. Please let the
> >>> >> list know whether you do or do not support this change by 6 April
> >>> >> 2026. Please note that if you already replied in here:[2] there is
> no
> >>> >> need to also reply to this thread unless you changed your mind.
> >>> >>
> >>> >> Note that as draft-ietf-tls-rfc8446bis in currently in AUTH48, this
> >>> >> may add some delay to its publication. We believe that any delay
> would
> >>> >> be small because we already know there are outstanding PRs that
> needed
> >>> >> to be worked.
> >>> >
> >>> > FWIW, I still believe that the current SHOULD NOT (reuse ephemeral
> keys)
> >>> > is better than the proposed MUST NOT, however that's not a battle
> worth
> >>> > fighting.  It seems that the prevailing wisdom is to make the change,
> >>> > and no disaster will ensue if it is made.
> >>>
> >>> +1
> >>>
> >>> I believe implementations and deployment that make reasonable use of
> key
> >>> share reuse (which I believe the earlier discussion acknowledged) will
> >>> happily continue to do so, violating the MUST NOT, and things will be
> >>> fine.
> >>>
> >>> This all seems motivated by insuring against the ML-KEM patent license
> >>> that limits for what ML-KEM can be used for, to allow the IETF to say
> >>> "oh but TLS does not allow ephemeral key shared so we don't care about
> >>> that use-case".
> >>>
> >>
> >> No. That's not correct, at least not for me.
> >>
> >> Separately, I've noticed you have a tendency to attribute motives to
> >> others that
> >> aren't really accurate and often seem designed to reflect badly on them.
> >> I would ask you to stop.
> >>
> >> -Ekr
> >>
> >> _______________________________________________
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> >>
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> >
>
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