[cabfpub] Ballot process ordering

[Ryan Sleevi]

On Wed, Nov 2, 2016 at 10:40 AM, Kirk Hall <Kirk.Hall at entrustdatacard.com>
wrote:

> 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.
>

You made it clear that you interpret it that way, and were discussing
possible solutions to bring us to compliance.

You could have, for example, conducted a Straw Poll to see whether there
was agreement with your view.

For what it's worth, I have several times raised these concerns before the
F2F. It merely seems you either weren't listening or weren't understanding,
which, while unfortunate, is not an argument to suggest that these views
don't matter.


> 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.
>

No one is suggesting it's not important. However, you've heard repeatedly -
over weeks - from members who disagree with your and Virginia's
interpretation about what our IPR Policy expects.

As such, your entire statement here does not help meaningfully advance the
discussion.


> 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.
>

This is not true.


> 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.
>

I already responded to this in
https://cabforum.org/pipermail/public/2016-November/008735.html


> Those Goals will not be met if a Review Period occurs after the Forum has
> already approved a Ballot by a vote.
>

I have repeatedly responded to this.

Can you clarify whether you don't understand my arguments, aren't receiving
them, or are dismissing them?



> 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.
>

We've repeatedly discussed this.


> 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.
>

This seems irrelevant to what has been proposed.


>  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.
>

This isn't true, but you've been fairly consistent about misrepresenting
discussions at this point, that I'm increasingly inclined to believe it may
be intentional.


> 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
>

To be clear: Jeremy and I have both expressed, concretely, repeatedly, that
we believe this is exactly what you are doing.

You, personally, are pushing your particular interpretation of the IPR
Policy in a way that meaningfully changes the requirements. As you have, to
date, ignored these concerns, it becomes more pressing to object - to the
precedent and the process.

This would be one issue if you were proposing it as an individual member.
However, as the newly elected Chair of the Forum, this is something we find
quite troubling and without precedent.


> 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.
>

I appreciate the subtle implication in you posing this as you have, in a
personally directed response. While I cannot provide you legal advice, nor
am I going to relay to you the legal advice we've received, I can only
state that our position is our position, and if you continue to pursue this
path, we will find it necessary to vote as appropriate, due to the
significant risks you are introducing through this process.

>
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