[cabfpub] IPR Exclusion notices

[Ryan Sleevi]

On May 3, 2016 8:51 AM, "Dean Coclin" <Dean_Coclin at symantec.com> wrote:
>
> As discussed on last week’s call, there appears to have been some
ambiguity in the instructions to organizations that wanted to provide an
exclusion notice in accordance with the latest IPR policy. The ballot
stated that this had to be done within 60 days in accordance with the
policy but the policy said that notice had to be provided to the CA/B Forum
chair and not to the public list or anywhere else as we’ve done in the
past. For example, it was mentioned that one company posted their exclusion
notice to the wiki but did not notify the Chair. Is this acceptable?
Another organization notified the chair by the deadline (the chair did not
post it until after the deadline). And we never sent a formal reminder out
prior to the deadline.
>
>
> For these reasons, I would propose that we extend the deadline another 30
days with clear instructions that the notice should be posted to the public
list. Is anyone willing to endorse such a proposal? We can collaboratively
work on the language to insure clarity.
>

Dean,

As expressed on the call, Google does not believe our bylaws support such
an action. Further, we think it problematic if it were possible for the
Chair, particularly one who represents one of the two organisations
affected, could unilaterally change our bylaws or our IPR policy, which
this proposal effectively does. Our bylaws serve as the bulwark against the
concerns of antitrust, and I would hope that would encourage behaviour that
is beyond reproach. To that end, we think it would undermine the
protections and assurances that the IPR policy is meant to provide, and, if
your procedure was accepted, it would be as if there was no IPR policy at
all, as organizations could not rely on the protections without the risk of
the chair changing them.

For the record, after review with our Legal and Standards teams, our
position is that neither disclosure adhered to the procedure set forward by
the ballot, and as such, do not represent valid disclosures according to
our policy. The ramifications of that, we do not have a position on.

If it is possible - by chair fiat or by ballot - for items to be introduced
to the BRs, for members to hold IPR necessary for the implementation, for
it to be licensed as Royalty Free per our IPR, and then, once widely
adopted by industry, for the member or a set of members to propose or
approve a ballot that allows such IPR to be excluded, then that represents
the essence of a submarine patent, and is one of the many situations that
our IPR policy is designed to protect against.

Further, if it were possible for the Chair to hold IPR containing Essential
Claims, and not disclose it, for members to build solutions based upon it,
and then claim that through virtue of the chair's specific knowledge it was
disclosed, then it does not seem that the Chair would be acting in the
interests of the Forum, and has a necessary conflict of interest that may
be regarded as anti-competitive.

At question here are the principles upon which this Forum operates, the
legal assurances our IPR policy is meant to afford, and the defenses
against claims of anti-competitive behavior. However unfortunate the
situation, how we deal with this must be beyond reproach and consistent
with the standard of behavior for which this Forum has adopted.
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