[cabfpub] Ballot process ordering

[Ryan Sleevi]

On Wed, Nov 2, 2016 at 8:14 AM, Gervase Markham via Public <
public at cabforum.org> wrote:

> This is my understanding of the current controversy regarding the
> balloting process. I'm sure it is incomplete. Can people make
> corrections and additions until it's accurate and everyone can
> understand where the disagreement lies and what the arguments are for
> each position?
>
> Position 1
> ----------
>
> This position states that the order of events should be:
>
> 1) Ballot Formulation
> 2) Optional Straw Poll
> 3) Discussion Period*
> 4) IPR Review Period
> 5) Voting Period
> 6) "Approval"
>
> * May be before, after or during IPR review but must be before voting
>
> The proponents of this position make the following points:
>
> A) "Prior to the approval of a CAB Forum Draft Guideline as a CAB Forum
> Final Guideline, there shall be..." in IPR Policy section 4.1 means
> "Before a CAB Forum Draft Guideline is voted on (the Forum's stamp of
> 'approval' which makes it a CAB Forum Final Guideline), there shall
> be...".
>
> B) ...
>
> Position 2
> ----------
>
> This position states that the order of events should be:
>
> 1) Ballot Formulation
> 2) Discussion Period
> 3) Voting Period
> 4) IPR Review Period
> 5) "Approval"
>
> The proponents of this position make the following points:
>
> J) This is what we have always done historically.
>
> K) "Prior to the approval of a CAB Forum Draft Guideline as a CAB Forum
> Final Guideline, there shall be..." in IPR Policy section 4.1 means
> "Before a CAB Forum Draft Guideline can be approved as a CAB Forum Final
> Guideline (which is the final step in the process), there shall be...".
>
> L) ...
>

I'm not sure how to summarize succinctly into L, but one particular note
related to the order of Position 1 and Position 2

The IPR policy -
https://cabforum.org/wp-content/uploads/CABF-IPR-Policy-v.1.2.pdf - calls
for the formation of a PAG. Note the wording used in 7.1 - "The PAG is an
ad-hoc group constituted specifically in relation to the Final Guideline or
Final Maintenance Guideline containing the conflict."

Similarly, note the language in 7.3.1 - "In other cases, it may be that the
PAG can better resolve the licensing problems when the specification is at
the Review Period level"

And 8.1:
“Essential Claims” shall mean all claims in any patent or patent
application in any jurisdiction in the world that would necessarily be
infringed by implementation of any Normative Requirement in a Final
Guideline or Final Maintenance Guideline.

The combination of these suggest, at an interpretive level, that the only
disclosure is related to things which members have voted on. That is, only
specifications which will become FG/FMG - if "approved" after the Review
Period - will be considered. I believe this supports Position 2.

M) CA/B Forum members may be able to perform 'denial of service' or
'exploratory reviews', by positioning ballots which will not be approved by
the Forum (even with the non-binding strawpoll), but which can be used to
explore members' IPR portfolios for free.

Explained: That is, it only takes three members (or, in the absence of
clarity regarding the issues of Qihoo/WoSign/StartCom and, in general,
"Affiliates", only one company) to put forward a draft guideline which
mandates specific technologies, for which members must perform IP reviews
for for exclusions. Members with IP cannot reliably assume that the ballot
will fail - and will have no recourse should it succeed through accident or
apathy of members.


As an aside, regardless of the Positions, one element not yet captured in
the discussions of our IPR policy is what happens if no members sign up for
the PAG. PAGs have the unique risk of willful or contributory patent
infringement, either by recommending it by attempting to design around it
or recommending it be ignored. If no members sign up for a PAG, what
implications does this have for the results of the Forum's activity? Is a
PAG considered 'convened' if no members agree to participate?
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