<div dir="ltr"><br><div class="gmail_extra"><br><div class="gmail_quote">On Thu, Nov 3, 2016 at 9:14 AM, Gervase Markham <span dir="ltr"><<a href="mailto:gerv@mozilla.org" target="_blank">gerv@mozilla.org</a>></span> wrote:<br><blockquote class="gmail_quote" style="margin:0 0 0 .8ex;border-left:1px #ccc solid;padding-left:1ex">Well, as someone who was part of the group drafting the original IPR<br>
policy, I can tell you that the intent was certainly that "Final<br>
Guideline" == "new document", and "Final Maintenance Guideline" ==<br>
"patch to existing document".<br></blockquote><div><br></div><div>The problem is what you meant isn't what members signed ;) This is similar to the appeal to authority - we have a contactual agreement in place on the IPR policy, so it's a combination of matters - both intent and actuality - that affect how we behave. This is similar to if you and I personally entered in a contract where I agreed to pay you "one hundred dollars" a month for 5 years, and then 2 years in, you tell me you meant to say "one hundred *Canadian* dollars". You may have meant that, but the lack of specificity - and precedent, are to some extent relevant.</div><div><br></div><div>That said, I readily admit we're far into the weeds here on the nuance, and it's important to remember the context, which is what do we name things along each step of the way, and is that supported. I'm entirely in favor of clarity, and am trying to highlight the 'bugs' here that prevent that clarity.</div><div><br></div><div>This is particularly significant if we allow multiple ballots to proceed concurrently, because it's important to know what the IPR disclosure is covering.</div><div><br></div><div>Using our old IPR policy as an example, simply because more people are familiar with the issues, imagine we were discussing 3.2.2.4, and we had 3 methods</div><div>1) Encumbered</div><div>2) (believed to be unencumbered)</div><div>3) Any other method</div><div><br></div><div>Now imagine we have two Ballots - Ballot A and Ballot B.</div><div>A) Introduces Method 4, believed to be unencumbered</div><div>B) Removes Methods 2 & 3</div><div><br></div><div>Some of the problem we have with Position 1 is that, in such a scenario, it's unclear what the Review Period encompasses, and how it works with respect to Balloting.</div><div><br></div><div>Consider the following interpretations:</div><div>Ballot A's review period only considers the text "(1,2,3)+4". As such, if 4 is encumbered, it's not an Essential Claim (recall, we're using old IPR policy for sake of discussion here, I'll explain why more below), so no disclosure is required for 4.</div><div>Ballot B's review period only considers the text "(1,2,3)-(2,3)", and as such, even if 4 is unencumbered, 1 is still an Essential Claim, so disclosure is required.</div><div>Ballot A and Ballot B's review period considers the union of these ballots "(1,2,3)+4-(2,3) - aka (1,4)" - and any disclosures must operate on that text.</div><div><br></div><div>I used our old IPR policy simply because the 'ala carte' Essential Claim issue was something most people understand by now. However, even under our current IPR policy, this issue exists if we have multiple concurrent modifications to the text, because the Essential Claimness of one section can be affected by changes in another (e.g. imagine a change to Section X saying "This is how you do Y", and a concurrent change to Section A saying "You MUST set B in accordance with Section X")</div><div><br></div><div>Position 1 introduces more IPR ambiguity, because it leaves it unclear how to handle this, for which the only logical conclusion is that there can only be a single ballot at a time, and each ballot MUST take either 37 (30 + 7 day voting) or 44 (30 + 7 day review + 7 day voting) before another can be scheduled. And I would argue for the 44 on principle, because we shouldn't be overlapping ballot review with IPR review, as we'd need to restart IPR review any time a ballot modification was made during ballot review.</div><div><br></div><div>I believe Position 2 avoids this, and matches our precedent, because both Ballots can be voted on, and the Review Period can encompass the integrated text of both ballots (if they succeed) or the individual text (if only one succeeds). The activities of the Forum would only slow down if and when an Exclusion Notice is put forward, because until the PAG is convened and resolved, the guidelines (which can still be modified by ballot) are not formally Approved.</div><div><br></div><div>This is in line with our past precedent, and given the significant risk and ambiguity involved with the Review Period of Position 1, I'm surprised to see people advocate that it brings clarity, especially given the context in which this Forum has historically operated, and in which proponents of Position 1 are presently trying to operate (by asking Patent Counsels to review 3 significant changes simultaneously). There's nothing to further prevent someone from putting forward 5, 10, or 50 of these - if they can find co-endorsers - and completely execute a Denial of Service on companies patent counsel, or force members with large IP holdings to incur significant costs or risk, because Members cannot be certain that the Ballot will fail. It's a system rife for abuse, and I believe the launching of three concurrent review periods is, itself, an example of abuse, and fundamentally why we disagree with Position 1.</div><div> </div></div></div></div>