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

[kirk_hall at trendmicro.com]

I would say that no changes are needed to our IPR policy for members.

We already have a provision by which a Member can seek exemption from the policy for “Affiliates”, which in most cases would allow Members who are owned by private equity groups to get an exemption for the private equity owner and for other companies owned by the same private equity owner (we would just want confirmation that the Member does not assign its IP to another entity, and that the Member does not license IP from an Affiliate on a basis not available to others).  That solves the “Affiliate” problem raised by some former Members.

Otherwise, the former Members who quit are free to rejoin the Forum under our current IPR Policy and follow the same procedures that the rest of us do.

From: public-bounces at cabforum.org [mailto:public-bounces at cabforum.org] On Behalf Of Benjamin T. Wilson
Sent: Thursday, November 15, 2012 7:00 AM
To: public at cabforum.org
Subject: Re: [cabfpub] Straw Poll on IPR Policy Scope (Membership vs. Participation)

Thanks everyone who has responded.  I'll close the poll later today and tally up the votes.  It appears, however, that option H is preferred.  Let's assume, for analysis purposes only, that is the case, then would we now revisit the IPR policy at all,  or not?
Thanks,
Ben

On Nov 15, 2012, at 5:27 AM, "Madell, William" <bill.madell at trustis.com<mailto:bill.madell at trustis.com>> wrote:
Ben,

Trustis supports options C and H, in that order.

Cheers,
Bill


From: public-bounces at cabforum.org<mailto:public-bounces at cabforum.org> [mailto:public-bounces at cabforum.org] On Behalf Of Ben Wilson
Sent: 13 November 2012 19:24
To: ben at digicert.com<mailto:ben at digicert.com>; public at cabforum.org<mailto:public at cabforum.org>
Subject: Re: [cabfpub] Straw Poll on IPR Policy Scope (Membership vs. Participation)

This straw poll is still open.   The IPR working group needs everyone’s input.
Thanks,
Ben

From: public-bounces at cabforum.org<mailto: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<mailto:public at cabforum.org>
Subject: [cabfpub] Straw Poll on IPR Policy Scope (Membership vs. Participation)

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
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