[cabfpub] IPR Exclusion notices

Dean Coclin Dean_Coclin at symantec.com
Tue May 3 16:17:34 UTC 2016

What I’m asking for here is a ballot, not a general exception nor any fiat action from the chair. Sorry if that was not clear. 


The ballot would effectively extend the deadline and give clear instructions on how the exclusions should be submitted, something we feel was not done the first time. You’ve made Google’s position on this clear and I just wanted to clarify where I’m coming from.



From: Ryan Sleevi [mailto:sleevi at google.com] 
Sent: Tuesday, May 03, 2016 12:12 PM
To: Dean Coclin <Dean_Coclin at symantec.com>
Cc: CABFPub <public at cabforum.org>
Subject: Re: [cabfpub] IPR Exclusion notices


On May 3, 2016 8:51 AM, "Dean Coclin" <Dean_Coclin at symantec.com <mailto: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.


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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