[cabfpub] Straw Poll on IPR Policy Scope (Membership vs. Participation)

[Yngve Nysaeter Pettersen]

Hi,

Opera Software is rather pragmatic on this issue. Our desired outcome is  
that 1) all relevant stakeholders continue to participate in the forum and  
2) CAB Forum Guidelines are not subject to non-RF patents. All the  
proposed alternatives are balancing those two concerns.

That said, we prefer the proposed option C, or alternatively option E.


On Thu, 08 Nov 2012 20:27:08 +0100, Ben Wilson <ben at digicert.com> wrote:

> All,
>
>
> This email announces a straw poll.   Please respond before this time next
> week.
>
>
> 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
> policy requirements.
>
>
> 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
> discussed"
>
> 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
> Section 4).
>
> 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.
>
>
> Thanks,
>
>
> Ben
>


-- 
Sincerely,
Yngve N. Pettersen
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Senior Developer		     Email: yngve at opera.com
Opera Software ASA                   http://www.opera.com/
Phone:  +47 96 90 41 51              Fax:    +47 23 69 24 01
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