<html>
<head>
<meta content="text/html; charset=ISO-8859-1"
http-equiv="Content-Type">
</head>
<body text="#000000" bgcolor="#FFFFFF">
Ryan,<br>
I agree with your misgivings regarding Position 1 in general.
However, for reasons I stated on the management group, and will
re-state here for the public, I don't believe those misgivings apply
to the current ballots 180-182. To the best of my knowledge, there
is nothing contained in these three ballots which has not already
been voted on and passed by the proper voting methods contained in
the Bylaws.<br>
<br>
I also don't think the concern about concurrently running ballots is
valid in this instance because essentially, as far as I am aware, if
we take each of the 3 ballots to represent the whole finalized
version of the Final Guidelines contained w/in them, ballot 180 is a
subset of ballot 181, which is a subset of ballot 182. That being
the case there really is no extra work load for the members patent
teams in this instance. Do the review on ballot 182 and you've
covered 180 and 181 in the process.<br>
<br>
If I'm wrong regarding ballot content in my above assumptions,
please correct me, but that is my understanding of these 3 ballots
at this point.<br>
<br>
In regard to your overall points about the process in general, I am
largely in full agreement with you, and think that Position 2 is the
best, though I do think we need to make some tweeks to the Bylaws,
and possibly to the IPR Policy in order to address some legitimate
concerns which Virginia and the other proponents of Position 1 have
brought up. I'll outline my position on that in another message.
However, for ballots 180-182, due to their unique nature, IMO the
concerns of both positions have been addressed, so we should move
forward with these ballots in order to get back to an even keel in
terms of having finalized work product which is fully compliant with
our current Bylaws and IPR Policy.<br>
<br>
-Rich<br>
<br>
<div class="moz-cite-prefix">On 11/3/2016 2:25 PM, Ryan Sleevi via
Public wrote:<br>
</div>
<blockquote
cite="mid:CACvaWvakQaZUZqobwL_JWRNreLNab5Ex84uMvV3rrOc2qvmRmA@mail.gmail.com"
type="cite">
<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
moz-do-not-send="true" 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>
<br>
<fieldset class="mimeAttachmentHeader"></fieldset>
<br>
<pre wrap="">_______________________________________________
Public mailing list
<a class="moz-txt-link-abbreviated" href="mailto:Public@cabforum.org">Public@cabforum.org</a>
<a class="moz-txt-link-freetext" href="https://cabforum.org/mailman/listinfo/public">https://cabforum.org/mailman/listinfo/public</a>
</pre>
</blockquote>
<br>
</body>
</html>