[cabfpub] question about patent-free guidelines

Ryan Sleevi sleevi at google.com
Thu Nov 3 18:35:18 UTC 2016

On Thu, Nov 3, 2016 at 11:20 AM, Dimitris Zacharopoulos via Public <
public at cabforum.org> wrote:

> Well, my question was not intended to interfere with the other threads
> regarding the current ballots or the sequence of events that have to take
> place. I was more curious if there is a clear understanding among members
> whether or not the requirements MUST be free of patents. So far, I didn't
> read something in the Bylaws or the IPR policy that suggest that the CA/B
> Forum is required to produce patent-free guidelines but, I am sure members
> more familiar with legal language will correct me if I'm wrong :-)

Right, this is currently a point of discussion/debate. There are some who
have represented that, because the goal (stated in the IPR policy) is that
the Forum "will ordinarily not approve a Guideline if it is aware that
Essential Claims exist which are not available on RF terms" (Section 2 of
https://cabforum.org/wp-content/uploads/CABF-IPR-Policy-v.1.2.pdf ), that
it's effectively a statement that the Forum WILL NOT (that is, 'ordinarily'
is superfluous) approve them, or that it MUST NOT improve them (Virginia's
example of stating that CAs will be required to infringe)

There are some (and in the interest of full disclosure, myself included)
that disagree, and see it similar to you.

> AFAIK only the actual documents are licensed under the Creative Commons
> Attribution 4.0 International license.
> It would be interested to learn two things:
>    1. whether it is dictated in the bylaws or the IPR policy that the
>    CA/B Forum must produce patent-free guidelines (otherwise it is probably
>    allowed to include some patented solutions, among others with royalty-free
>    license)
>    2. hear if members feel that all guidelines should cover methods and
>    practices that are patent-free or not.
> Section 7.3.2 provides some guidance to your question #1, because it
further outlines what possible steps may be taken after an Exclusion Notice
over an Essential Claim has been filed. Relevant to your question is the
first item - "The initial concern has been resolved, enabling the work on
the Guideline to continue. " - which would suggest that one possible result
of the PAG is to allow the encumbered method to be included, so long as
unencumbered methods were available.
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