[cabfpub] Straw Poll on IPR Policy Scope (Membership vs. Participation)
jeremy.rowley at digicert.com
Fri Nov 9 19:07:19 UTC 2012
DigiCert votes as follows:
I - After continued deliberation, we think it's apparent that the CAB Forum
should model the IETF IPR policy. The original straw poll in 2011 did not
clearly show that the membership favored an RF approach. In addition,
permitting interested party participation in working groups and the nature
of the Forum will add to the headaches caused by this issue. The IETF is a
Contribution-centric model that has already been studied and adopted by many
of our members as part of their IETF participation. Therefore, we should
re-evaluate the original RF decision and focus on fixing the IPR once and
for all. In our opinion, the goal is disclosure, not licensing. The IPR
should reflect this. However, if we are determined to try and fix the
current draft, then our preferred choices are as follows:
C - This option gives a bright-line rule that meets the goals of the current
IPR without increasing the risk of patented material being included in a
guideline. Unlike a "yes" vote, a "no" or "abstain" vote doesn't risk
creation of patented material. We're not worried about someone running to
the patent office to file a provisional on current Forum discussions.
Anyone willing to go that far will remain a member of the Forum and file an
exclusion notice on their newly minted gold mine.
B - Voting rights permit a member to adopt patented material as a guideline.
If the Forum isn't willing to exclude "no" or "abstain" votes, then every
vote should trigger the Forum's RF licensing/exclusion notice obligations.
E - If voting is not considered participation, then all voting members
should be required to disclose their patents covering a guideline.
D - If a majority of members disagree with our view that voting should
constitute participation, then, at a minimum, a contribution should always
trigger the IPR policy's obligations. We do not think the attendance
requirements in F and G provide significant amounts of protection compared
to the added complexity.
F - F and G are unnecessarily complex.
G - F and G are unnecessarily complex.
We do not see A or H as viable options. We think the IPR needs to change
and, thus, do not support a "No change" approach. Option A only delays the
inevitable discussion. Instead of punting the issue, the Forum should
decide what to do now and avoid adopting a potentially unworkable solution.
From: public-bounces at cabforum.org [mailto:public-bounces at cabforum.org] On
Behalf Of Ben Wilson
Sent: Thursday, November 08, 2012 12:27 PM
To: public at cabforum.org
Subject: [cabfpub] Straw Poll on IPR Policy Scope (Membership vs.
This email announces a straw poll. Please respond before this time next
During the IPR Policy telephone call this week, the IPR group discussed
proposed language for defining when RF licensing would and would not apply.
The current proposal would grant a safe-harbor from RF licensing by using
the following language:
"Notwithstanding any other provision of this IPR Policy, only the
affirmative act of [technical participation] (or otherwise agreeing to the
licensing terms described here) will obligate a CAB Forum Member to the CAB
Forum RF License. Mere membership in the CAB Forum alone, without other
factors, does not give rise to the CAB Forum RF License obligation under
this IPR Policy."
The group requires input from the membership on how, and if/when, we should
define "technical participation". We are conducting a straw poll to help
the group decide on the appropriate language. This straw poll is based on
the instant runoff ballot process (single transferable vote) used during the
governance reform. The end result of the ballot will be provided to the IPR
group sometime next week. Please choose your order of preference for each
choice you are willing to accept and respond to this email before next
Thursday. Entrust, Identrust, RSA, T-Systems, PayPal, ETSI, and WebTrust
should also indicate their preferences, if they want, since whatever
decision we make might also apply to them.
The choices are listed below. Where applicable, "Contribution" will be
defined to mean "material, including Draft Guidelines, Draft Guideline text,
and modifications to other Contributions, made verbally or in a tangible
form of expression (including in electronic media) which is provided by a
Participant in the process of developing a Draft Guideline for the purpose
of incorporating such material into a Draft Guideline or a Final Guideline.
For a verbal contribution to be deemed a Contribution hereunder it must be
memorialized within approved meeting minutes of the CAB Forum."
For your response, where applicable, replace the bracketed phrase
"[technical participation]" above with the quoted language below:
A --- "technical participation, as defined by rules of the CAB Forum".
Rationale: Reinstating the members who left is of the utmost urgency. They
would like a provision that distinguishes the type of participation that
would give rise to an RF licensing obligation. We can find a definition
that works well for the Forum and all its members once a new IPR policy is
adopted and the governance reform is complete and the members who left are
able to provide input.
B --- "making a Contribution or Voting on any matter on which a vote is
sought concerning a Guideline".
Rationale: Members should not be able to contribute to work product or vote
on work product without either filing exclusion notices or granting an RF
license. This is necessary to ensure that the Forum doesn't pass guidelines
containing patented material.
C --- "making a Contribution or Voting in favor of a Guideline".
Rationale: There is little risk in members voting "No" or "Abstain" since
that cannot result in the adoption of patented subject material. Therefore,
members should be able to vote against guidelines without triggering the IPR
D --- "making a Contribution".
Rationale: Voting does not influence the actual contents of the Forum's work
product and does not add to a document's requirements. By the time a vote
occurs, the Forum should have already determined whether the document covers
a member's IP rights. Therefore, all members should be able to vote on a
guideline without triggering IPR policy requirements.
E --- "making a Contribution", provided that the following sentence of the
section is modified to read, "Mere membership in the CAB Forum alone,
without other factors, does not give rise to the CAB Forum RF License
obligation under this IPR Policy, unless the Member votes in favor of the
Guideline having personal knowledge that it contains an Essential Claim that
has not been disclosed to the CAB Forum."
Rationale: The goal of the IPR policy is to ensure that all members are
aware of the IP that might touch on a final guideline. Plus, voting does
not influence the actual contents of the Forum's work product and does not
add to a document's requirements. As long as a member isn't aware of any
hidden IP, permitting the member to vote on a guideline does not risk
compromising the IPR's intended goal of disclosure and avoiding the adoption
of guidelines containing patented material.
F --- "making a Contribution to the Guideline, Voting in favor of the
Guideline, joining a Working Group (if one is chartered to develop the
Guideline), or attending 3 or more meetings during which the Guideline was
Rationale: Limiting member participation for those unwilling to abide by the
IPR will prevent bad actors from obtaining IP rights on upcoming guidelines.
This language prevents members from running to the patent office to file a
patent on upcoming work product and prevents a member from, directly or
indirectly, inserting IP covered provisions in work product.
G --- "making a Contribution or attending one (1) face-to-face meeting or
more than three (3) meetings remotely in the 12-month period preceding the
adoption of the Guideline"
Rationale: The specific provisions in Guidelines change and what is an
Essential Claim may change leading up to adoption. Therefore, the real risk
of a member filing a patent on proposed material is during the 12 months
prior to adoption. Limiting participation to this threshold would allow a
member that doesn't participate much, but wants to vote on guidelines, to
maintain its membership without having the obligations of the Forum's IPR
policy apply as long as its participation does not go above a certain level.
Once the document heads towards adoption, member participation is restricted
to prevent inclusion of patent encumbered provisions and prevent the
possibility of filing new patents covering proposed guideline material.
H --- No change (CABF members grant RF license unless they comply with
Rationale: The IPR is intended to prevent the Forum from adopting guidelines
that contain patent-controlled material of members. Providing a safe-harbor
limits this requirement and counters the original intent behind the IPR's
adoption. Members are free to adopt the current IPR, but the Guidelines are
few and easy enough to review that special accommodations should not be
provided simply because a member owns IP.
I --- Other. (Please provide a suggested solution and explanation on why
none of the other options satisfactorily address your concerns)
Rationale: None of the suggested paths meet the Forum's needs. The Forum
needs to focus on a different solution to the problem.
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