[cabfpub] Revised Draft of IPR Policy and Resolution

[kirk_hall at trendmicro.com]

+1, Gerv.  That's exactly the problem with a proposed new "participation" IPR policy I was trying to highlight.

I'm afraid we could get a class of "Members" who want to have the benefit of claiming "membership" and who will try to influence the activities of the Forum up to the point where they would be deemed to "participate" and have to disclose their IP.  At that point they will stop so they can say the never "participated" and have no duty to disclose their IP (even though the rest of us have to), and can later sue the rest of us if they want to on an adopted Guideline.  Why would the Forum want to allow that?

-----Original Message-----
From: Gervase Markham [mailto:gerv at mozilla.org] 
Sent: Thursday, November 08, 2012 6:40 AM
To: Jon Callas
Cc: Kirk Hall (RD-US); David Rudin (LCA); Jay Kendry; Heather_Molleur at symantec.com; Marc Braner; public at cabforum.org
Subject: Re: [cabfpub] Revised Draft of IPR Policy and Resolution

On 05/11/12 21:14, Jon Callas wrote:
>> Ben – I have never understood what is meant by “stand around 
>> licensing”.  Can you define?
>
> Ben did a good job of that. We've also called it "stand around 
> liability." The concern is having to give a license or be liable 
> without making an affirmative act, merely by standing around, as Ben said.

"Stand-around liability" could also be referred to as "no-submarine licensing".

Here are three possible outcomes from "standing around" under the current IPR policy:

1) A guideline passes, and you have no IP which reads on it. Fine.

2) A guideline passes, and you have IP which reads on it, but you planned to license it RF for the good of the web anyway. Fine.

3) A guideline passes, and you have IP which reads on it, and you do not wish to license it RF, but you did because you didn't declare an exclusion. This may not be so good for you, but it is a good thing for the Forum as a whole, because it means you can't sue ("submarine") anyone else over a Guideline we've passed.


As I understand it, you, Entrust, want the _ability_ (not saying _desire_ - I know you continue to maintain you are not eager to sue, and I believe you) to be a member of the Forum, and see a Guideline come into being, get hashed out, voted on, and pass, and then sue Forum members over IP you have in that guideline with those members did not know about (because you didn't tell them, perhaps because you didn't know).

I don't want you to have that ability, no matter whether you noticed the IP was infringed before the Guideline passed or after. I'd say being part of the Forum means collaborating with us in keeping patent lawsuits far from our standards, by declaring infringed IP before we get to a vote. That takes effort, requires understanding of ones own IP portfolio (not an unreasonable request, I hope) and is undeniably a responsibility. But it comes with the territory. You must gain some advantages from being members, otherwise you wouldn't want to be. This is an obligation which comes with those advantages.

This seems to me to be the fundamental conflict we keep hitting. You want the privileges of CAB Forum membership without the obligation to disclose IP you own which reads on _all_ CAB Forum standards (you are happy to do it for some where you 'participate', but not all). I say that we are small enough and produce few enough standards that it's reasonable that membership requires disclosure for all standards.

Gerv

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