[cabfpub] Ballot process ordering

Kirk Hall Kirk.Hall at entrustdatacard.com
Wed Nov 2 17:40:52 UTC 2016

First, why did you say nothing about this during the weeks of discussion on this list, (with Virginia, me, and others pointing out we were not following our IPR Policy, and must do so now)?  We made it clear during all these discussions and at the F2F meeting in Redmond two weeks ago that the IPR Policy requires a Review Period "Prior to the approval of a CAB Forum Draft Guideline”, but I don’t recall you raising any objections at that time.

Second, as IP attorney Virginia Fournier of Apple has pointed out to us on multiple occasions, antitrust regulators require that SDOs (standards development organizations) follow their own IPR Policies, or face possible consequences.  (Note: Virginia is not serving as counsel to the Forum or anyone but her own company, but is simply sharing her knowledge in this area).  So this is a very important issue.  All our prior weeks of discussion have focused on the requirement of our IPR Policy for a Review Period to flush out Exclusion Notices (that is, to discover claims of conflicting IP held by a member that the member will not give a free license to) before the Forum adds a new guideline in conflict with those IP claims.  That only works if the Review Period occurs before any vote of approval by the Forum.

Third, I refer you to the stated Goals in our IPR Policy, which every Forum member has signed:

2. Licensing and Disclosure Goals for CAB Forum Guidelines
In order to promote the widest adoption of CAB Forum Guidelines, CAB Forum seeks to issue Guidelines that can be implemented on a Royalty-Free (RF) basis subject to the conditions of
this policy. CAB Forum will ordinarily not approve a Guideline if it is aware that Essential Claims exist which are not available on RF terms. CAB Forum Members are encouraged to bring
to the attention of the CAB Forum any known patent or pending patent application of other organizations that might contain Essential Claims.

Those Goals will not be met if a Review Period occurs after the Forum has already approved a Ballot by a vote.  Under your interpretation, what happens if the Members approve a change to Guidelines, only to find out later (after a subsequent Review Period and Exclusion Notice) that a Member claims IP over the guideline?  Are we supposed to start a new Ballot to rescind the ballot we previously approved?  That makes no sense, and is contrary to the Goals of the IPR Policy.  It could also subject Members to patent infringement claims if they use a process approved by a vote of the Forum members before a Review Period occurs – something we all want to avoid.

I would also point out that nothing in our Bylaws says that the 7-day voting period on a ballot must immediately follow the 7-day discussion period – under the Bylaws, they can occur at separate times (e.g., under the Bylaws the voting can be delayed until after the Review Period is over).  I recognize we have generally stacked the two periods back-to-back – but then, we were not holding any Review Period at all for most ballots, so we were not following our IPR Policy.

Fourth – do you recall why we created three readoption ballots (originally A, B, and C, now numbered as 180, 181, 182)?  As we said in various emails, calls, and at our recent F2F meeting, Ballot 180 was to readopt (in compliance with our IPR Policy) all the policies except the domain validation methods of BR, Ballot 181 was to readopt (in compliance with our IPR Policy) the domain validation methods of BR that we believed were not subject to any Exclusion Notice claims, and Ballot 182 was to readopt (in compliance with our IPR Policy) the domain validation methods of BR that we believed would be subject to Exclusion Notice claims and have to go to a Patent Advisory Group (PAG) for evaluation (despite the requirements of our IPR Policy, to my recollection we have never formed a PAG in the past after receiving Exclusion Notices – also problematic).  We always discussed holding a vote to readopt after the conclusion of the Review Period.  We structured these ballots in this way because we believed that would put all our guidelines in compliance with our IPR Policy via Ballots 180 and 181 by January 7, and we could then deal with any Exclusion Notices for domain validation methods in Ballot 182 at our leisure – and in compliance with our IPR Policy.  This has been our stated plan for weeks, but you never objected until this week, after the Ballots were proposed, endorsed, and started their adoption process.

If Members want to change the requirements of our IPR Policy and move our IPR Policy Review Period to occur after a new guideline is adopted, they can do so (I think that’s a bad idea – look again at the Goals of our IPR Policy - but I’m only one person).  The Governance Change Working Group will be discussing all this next Thursday, and all are welcome to participate in the discussion.

Finally, because very serious antitrust rules apply to how SDOs like the Forum conduct their business, I would strongly recommend that all members consult with their legal departments and ask for their interpretation of our current IPR Policy before taking a final position on behalf of their companies.

From: Ryan Sleevi [mailto:sleevi at google.com]
Sent: Wednesday, November 2, 2016 10:03 AM
To: Kirk Hall <Kirk.Hall at entrustdatacard.com>
Cc: CA/Browser Forum Public Discussion List <public at cabforum.org>
Subject: Re: [cabfpub] Ballot process ordering

On Wed, Nov 2, 2016 at 9:04 AM, Kirk Hall <Kirk.Hall at entrustdatacard.com<mailto:Kirk.Hall at entrustdatacard.com>> wrote:
Clearly there are people in the Forum who don’t agree with this analysis – I am one.

Can you clarify – do you believe Position 1 is wrong, and Position 2 is correct?  Or are just weighing the two arguments without reaching a conclusion?

I'm surprised you asked this, as I thought I've made it clear that I believe Position 1 is wrong
1) It's wrong with past precedent in which we were complying
2) It's wrong in that it creates a number of new risks, as enumerated
3) It's wrong, because I feel there are a number of issues, as highlighted and which you haven't responded to, that textually do not support Position 1

In any event, I am the proposer of Ballots 180 through 182 and have no interest in withdrawing the Ballots at this point, and I see no harm in continuing on our current course.

Did you mean to say you disagree with the harm that others, including myself, have raised? Or do you feel that you do not understand why people are objecting?

This course (discussion, then review period, then voting) was laid out in each ballot and the process reviewed in some during our F2F meeting in Redmond two weeks ago.  No one at the meeting objected at that time, said the procedure was wrong, or suggested a different procedure.

This is not the standard to which we've conducted the Forum. Is this a presage to how the next two years will be?
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