[cabfpub] question about patent-free guidelines

Dimitris Zacharopoulos jimmy at it.auth.gr
Thu Nov 3 19:21:20 UTC 2016

Thank you Ryan, this is getting clearer to me now and hopefully to others.

On 3/11/2016 8:35 μμ, Ryan Sleevi wrote:
> On Thu, Nov 3, 2016 at 11:20 AM, Dimitris Zacharopoulos via Public 
> <public at cabforum.org <mailto: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)

If there is a number of options I can choose from, and I know that there 
is an option under the IP of another CA, I am not "required" to 
infringe. I simply choose not to use that method and I use the other 
methods which are royalty free (or I use my own compatible methods).

> 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.

This makes better sense now. I understand that the IPR Policy says: "We 
will do our best to have patent-free guidelines to promote widest 
adoption. If we get essential claims, we will form a PAG". The PAG's 
possible conclusions are listed in 7.3.2 and they all have a goal to 
resolve the patent issue, including f. "alternative licensing terms 
should be considered" which is different to an RF licensing. Doesn't 
this prove that it is possible to have a case (however rare that may be) 
where some non-RF methods are allowed to be used in the guidelines?

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