<div dir="ltr"><br><div class="gmail_extra"><br><div class="gmail_quote">On Tue, Nov 8, 2016 at 8:46 AM, Gervase Markham via Public <span dir="ltr"><<a href="mailto:public@cabforum.org" target="_blank">public@cabforum.org</a>></span> wrote:<br><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex">I may have buried the lede here, so:<br>
<span class="gmail-"><br>
On 03/11/16 16:21, Gervase Markham wrote:<br>
> be addressed, which would be fine. But would both sides be willing to<br>
> allow Mark to rule on original intent, and then adopt that method for at<br>
> least the purposes of getting the Forum back on its feet?<br>
<br>
</span>Kirk, Virginia and Ryan: are you both willing to abide by Marc's<br>
determination, at least temporarily?<br></blockquote><div><br></div><div>Hi Gerv,</div><div><br></div><div>I responded to this in another thread, but no, given that the IPR Agreement is a contract executed between members, this isn't suitable.</div><div><br></div><div>I appreciate the attempt to appeal to authority, but as it stands, and as was echo'd on the call and the list, the best path to get us into a clear state is to ensure that a ballot, regarding process and policy, is held.</div><div> </div><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex">
If you aren't willing to accept Marc's determination, it seems like we<br>
will have to start with the discussion of Positions 1 and 2, achieve<br>
consensus in the whole forum and agree wording, ballot that, and then<br>
restart ballots 180-182 or equivalent. This could take a very long time,<br>
during which the Forum's documents are in an uncertain IPR state and no<br>
edits can be made to them.</blockquote><div><br></div><div>Unfortunately, yes, this is correct - but necessary to ensure the protections of all members.</div><div><br></div><div>As has been stated elsewhere, members must be aware that if Position 1 is accepted under the standard of "authorial intent" - rather than what your legal teams reviewed and executed - then it takes only three members to trigger an IP search for you - and that of your Affiliates (See Section 3 of <a href="https://cabforum.org/wp-content/uploads/CABF-IPR-Policy-v.1.2.pdf">https://cabforum.org/wp-content/uploads/CABF-IPR-Policy-v.1.2.pdf</a> and related to understand the obligations of affiliates). Any member that failed to conduct such a search, and exclude such IP, runs the risk that the Forum may incorporate such work into a Final Guideline by a vote. To accept Position 1, at present, and in the absence of any other ballots to clarify process or interpretation, would likely make it untenable for any member who holds IP - in any area, whether or not it relates to CAs or otherwise - to attempt to bring it into scope of the Forum and potentially invoke RF licensing if members do not diligently exclude.</div><div><br></div><div>Concretely, one could imagine that, with the help of two co-sponsors, significant portions of Apple's IP could be brought into Essential Claim scope by the creation of the "Sleevi Says Guidelines". If Apple failed to diligently and completely exclude their IP - including the publication of unpublished patents - during the review period of Position 1, then when it went to a Forum vote, they would be gambling as to whether or not quorum would be met (triggering RF licensing).</div><div><br></div><div>These are unacceptable risks to take, at a ballot, and unacceptable costs to be able to be induced by just three members. Or, as we've seen with some ballots, only a single Member and its Affiliates.</div></div></div></div>