[cabfpub] Ballot process ordering (2)

Wed Nov 2 22:05:24 UTC 2016

Gerv - in response to the question you posed for proponents of Position 1:

a) Is the process that the PAG may modify the ballot before the vote, based on its conclusions? If so, do we need a new Discussion Period after the PAG? If not, and the PAG makes "recommendations", how are those recommendations accounted for, procedurally? Starting again?

I don't know the answer, and our IPR Policy doesn't offer much guidance.   It just says a PAG will be "launched" to "resolve the conflict":

7.1. PAG Formation
In the event a patent has been disclosed that may contain an Essential Claim, but such Essential Claim is not available under CAB Forum RF Licensing, a Patent Advisory Group (PAG) will be launched to resolve the conflict. The PAG is an ad-hoc group constituted specifically in relation to the Final Guideline or Final Maintenance Guideline containing the conflict. ***

I don't think we have ever formed a PAG before in response to disclosure of a patent not available under CAB Forum RF licensing - in fact, past Exclusions Notices did not specify whether or not RF licensing was available (they should have).  My own thinking is a PAG could examine the patents contained in an Exclusion Notice and the Guidelines they said were covered by the patent, and do some or all of the following (depending on the circumstances):

*       Analyze and point out the ways in which the patent did seem to cover some or all of the Guideline

*       Analyze and point out the ways the patent did NOT seem to cover the Guideline

*       Possibly suggest the patent may not be valid or enforceable, although this would be a pretty bold move and is unlikely

*       Point out that the member who filed the Exclusion Notice may not properly claim exclusion under Sec. 4.2 of the IPR Policy, which says "*** Essential Claims encompassed by a Participant's contributions that are actually incorporated into a Final Guideline or Final Maintenance Guideline approved in accordance with the CAB Forum Guideline approval process" cannot be excluded from royalty free licenses

*       Suggest a modification to the Ballot that might avoid the conflict (e.g., if the patent says "send a message to X in the following format Z", maybe the guideline could be made more general so a member could achieve some of the same results by following a different procedure not contained in the patent)

I don't think the PAG itself has the authority to modify a pending ballot - in my opinion, the ballot remains under the control of the proposer and two endorsers.

Of course, the PAG will not be providing legal advice to any member.  In the end, the ballot might be modified by the proposer and two endorsers (which would probably trigger another discussion period and another 30 day Review Period to see what happens - not a bad idea if the Forum is about to incorporate a guideline that is subject to someone's IP, and is not available under a RF license), or the proposer and/or endorsers might decide to withdraw the ballot entirely, in which case the guideline would not be added or amended.  Or the Forum members may vote "no" on the ballot after they receive the PAG report, in which case the changes to the guidelines will not occur.

Per Virginia's postings in the past, this is exactly the type of informed, deliberative process our IPR Policy is intended to create.  But until we create a PAG to examine Exclusion Notice claims for the first time, perhaps with Ballot 182, we won't really know - it's all new territory.

-----Original Message-----
From: Public [mailto:public-bounces at cabforum.org] On Behalf Of Gervase Markham via Public
Sent: Wednesday, November 2, 2016 11:04 AM
To: CABFPub <public at cabforum.org>
Cc: Gervase Markham <gerv at mozilla.org>
Subject: [cabfpub] Ballot process ordering (2)

[Updated version with points from Ryan and Kirk, not including the point of Ryan's I still don't quite get yet.]

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 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.

Questions for proponents of Position 1:

a) Is the process that the PAG may modify the ballot before the vote, based on its conclusions? If so, do we need a new Discussion Period after the PAG? If not, and the PAG makes "recommendations", how are those recommendations accounted for, procedurally? Starting again?

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.

Questions for proponents of Position 2:

j) This position states that we vote, there's an IPR review, and the change gets made regardless of what it turns up. So encumbered requirements could make it into the document (perhaps with immediate effect, for some ballots) and we'd have to have another vote to take them out (which might not pass)?

Gerv

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