[cabfpub] Ballot process ordering (3)

[Gervase Markham]

[3rd version. I discovered this in unsent mail; I'm sending it in case
it's still useful, although events may have moved on past that.]

Kirk suggests it would be wise for all members to consult their
attorneys before determining which understanding of the IPR policy they
support.

Position 1
----------

This position states that the order of events should be:

1) Ballot Formulation
2) Optional Straw Poll
3) Discussion Period*
4) IPR Review Period
5) PAG, if necessary
6) Voting Period
7) "Approval"
8) Document is updated

* May be before, after or during IPR review but must be before voting

The proponents of this position make the following points:

A) "Prior to the approval of a CAB Forum Draft Guideline as a CAB Forum
Final Guideline, there shall be..." in IPR Policy section 4.1 means
"Before a CAB Forum Draft Guideline is voted on (the Forum's stamp of
'approval' which makes it a CAB Forum Final Guideline), there shall
be...".

B) IPR policy section 2 states: "CAB Forum will ordinarily not approve a
Guideline if it is aware that Essential Claims exist which are not
available on RF terms." This suggests that approval comes after the PAG,
where Essential Claims are discovered.

C) The documented purpose of our IPR Policy for a Review Period is to
discover claims of conflicting IP held by a member that the member will
not give a free license to, before the Forum adds a new guideline in
conflict with those IP claims. That only works if the Review Period
occurs before any vote of approval by the Forum and change of documents.

D) If we adopt Position 2, then our current strategy of ballots 180
through 182 will fail, because they will all automatically be approved
even if there are Exclusion Notices filed, and so the end result is that
we will be in a position with the BRs containing all 10 validation
methods (and no "any other" method) while we run the PAG. This is
contrary to the plan outlined, which was that we would have only ballots
180 and 181 in effect while we run the PAG.

This position means that if a PAG proposes to continue with a ballot
unchanged, and this recommendation is accepted, then we move to the
voting stage. If the PAG proposes a modified ballot text, and this
recommendation is accepted, then one would need to start the process
again from the beginning with such a ballot.

Position 2
----------

This position states that the order of events should be:

1) Ballot Formulation
2) Discussion Period
3) Voting Period
4) IPR Review Period
5) "Approval" (regardless of IPR Review result)
6) Document is updated
7) PAG, if necessary

The proponents of this position make the following points:

J) This is what we have done historically (in those instances where
we've actually done IPR review at all).

K) "Prior to the approval of a CAB Forum Draft Guideline as a CAB Forum
Final Guideline, there shall be..." in IPR Policy section 4.1 means
"Before a CAB Forum Draft Guideline can be approved as a CAB Forum Final
Guideline (which is the final step in the process), there shall be...".

L) Sections 7.1 of the IPR guidelines says "The PAG is an ad-hoc group
constituted specifically in relation to the Final Guideline or Final
Maintenance Guideline containing the conflict." This suggests that while
the PAG is working, the document does actually contain the problem -
it's not "pending".

M) Section 8.1 of the IPR guidelines says: "'Essential Claims' shall
mean all claims in any patent or patent application in any jurisdiction
in the world that would necessarily be infringed by implementation of
any Normative Requirement in a Final Guideline or Final Maintenance
Guideline." Therefore, something only becomes an Essential Claim when
it's actually included as a Normative Requirement in a Final Guideline.
If the PAG happens before the vote, as in Position 1, then nothing is an
Essential Claim because it is not so included, and so no disclosures
would ever be made.

N) Position 1 would allow a small number of Forum members to perform
'denial of service' or 'exploratory reviews' by starting ballots which
would not be approved by the Forum but which can be used to explore
members' IPR portfolios for free.

O) Position 1 would mean that if some members could procedurally
deadlock a PAG, then we would never reach the point of voting.

This position means that if something IPR-encumbered is voted on and
this is discovered by an Exclusion Notice, the change is nevertheless
incorporated into the document, and the PAG convenes and works while
this is true. The Forum does, of course, have the option of passing
another ballot to remove or postpone the application of the provisions
in question.

Gerv