[cabfpub] Ballot process ordering

Rich Smith richard.smith at comodo.com
Fri Nov 4 15:54:00 UTC 2016

I agree with your misgivings regarding Position 1 in general. However, 
for reasons I stated on the management group, and will re-state here for 
the public, I don't believe those misgivings apply to the current 
ballots 180-182.  To the best of my knowledge, there is nothing 
contained in these three ballots which has not already been voted on and 
passed by the proper voting methods contained in the Bylaws.

I also don't think the concern about concurrently running ballots is 
valid in this instance because essentially, as far as I am aware, if we 
take each of the 3 ballots to represent the whole finalized version of 
the Final Guidelines contained w/in them, ballot 180 is a subset of 
ballot 181, which is a subset of ballot 182.  That being the case there 
really is no extra work load for the members patent teams in this 
instance.  Do the review on ballot 182 and you've covered 180 and 181 in 
the process.

If I'm wrong regarding ballot content in my above assumptions, please 
correct me, but that is my understanding of these 3 ballots at this point.

In regard to your overall points about the process in general, I am 
largely in full agreement with you, and think that Position 2 is the 
best, though I do think we need to make some tweeks to the Bylaws, and 
possibly to the IPR Policy in order to address some legitimate concerns 
which Virginia and the other proponents of Position 1 have brought up.  
I'll outline my position on that in another message. However, for 
ballots 180-182, due to their unique nature, IMO the concerns of both 
positions have been addressed, so we should move forward with these 
ballots in order to get back to an even keel in terms of having 
finalized work product which is fully compliant with our current Bylaws 
and IPR Policy.


On 11/3/2016 2:25 PM, Ryan Sleevi via Public wrote:
> On Thu, Nov 3, 2016 at 9:14 AM, Gervase Markham <gerv at mozilla.org 
> <mailto:gerv at mozilla.org>> wrote:
>     Well, as someone who was part of the group drafting the original IPR
>     policy, I can tell you that the intent was certainly that "Final
>     Guideline" == "new document", and "Final Maintenance Guideline" ==
>     "patch to existing document".
> The problem is what you meant isn't what members signed ;) This is 
> similar to the appeal to authority - we have a contactual agreement in 
> place on the IPR policy, so it's a combination of matters - both 
> intent and actuality - that affect how we behave. This is similar to 
> if you and I personally entered in a contract where I agreed to pay 
> you "one hundred dollars" a month for 5 years, and then 2 years in, 
> you tell me you meant to say "one hundred *Canadian* dollars". You may 
> have meant that, but the lack of specificity - and precedent, are to 
> some extent relevant.
> That said, I readily admit we're far into the weeds here on the 
> nuance, and it's important to remember the context, which is what do 
> we name things along each step of the way, and is that supported. I'm 
> entirely in favor of clarity, and am trying to highlight the 'bugs' 
> here that prevent that clarity.
> This is particularly significant if we allow multiple ballots to 
> proceed concurrently, because it's important to know what the IPR 
> disclosure is covering.
> Using our old IPR policy as an example, simply because more people are 
> familiar with the issues, imagine we were discussing, and we 
> had 3 methods
> 1) Encumbered
> 2) (believed to be unencumbered)
> 3) Any other method
> Now imagine we have two Ballots - Ballot A and Ballot B.
> A) Introduces Method 4, believed to be unencumbered
> B) Removes Methods 2 & 3
> Some of the problem we have with Position 1 is that, in such a 
> scenario, it's unclear what the Review Period encompasses, and how it 
> works with respect to Balloting.
> Consider the following interpretations:
> Ballot A's review period only considers the text "(1,2,3)+4". As such, 
> if 4 is encumbered, it's not an Essential Claim (recall, we're using 
> old IPR policy for sake of discussion here, I'll explain why more 
> below), so no disclosure is required for 4.
> Ballot B's review period only considers the text "(1,2,3)-(2,3)", and 
> as such, even if 4 is unencumbered, 1 is still an Essential Claim, so 
> disclosure is required.
> Ballot A and Ballot B's review period considers the union of these 
> ballots "(1,2,3)+4-(2,3) - aka (1,4)" - and any disclosures must 
> operate on that text.
> I used our old IPR policy simply because the 'ala carte' Essential 
> Claim issue was something most people understand by now. However, even 
> under our current IPR policy, this issue exists if we have multiple 
> concurrent modifications to the text, because the Essential Claimness 
> of one section can be affected by changes in another (e.g. imagine a 
> change to Section X saying "This is how you do Y", and a concurrent 
> change to Section A saying "You MUST set B in accordance with Section X")
> Position 1 introduces more IPR ambiguity, because it leaves it unclear 
> how to handle this, for which the only logical conclusion is that 
> there can only be a single ballot at a time, and each ballot MUST take 
> either 37 (30 + 7 day voting) or 44 (30 + 7 day review + 7 day voting) 
> before another can be scheduled. And I would argue for the 44 on 
> principle, because we shouldn't be overlapping ballot review with IPR 
> review, as we'd need to restart IPR review any time a ballot 
> modification was made during ballot review.
> I believe Position 2 avoids this, and matches our precedent, because 
> both Ballots can be voted on, and the Review Period can encompass the 
> integrated text of both ballots (if they succeed) or the individual 
> text (if only one succeeds). The activities of the Forum would only 
> slow down if and when an Exclusion Notice is put forward, because 
> until the PAG is convened and resolved, the guidelines (which can 
> still be modified by ballot) are not formally Approved.
> This is in line with our past precedent, and given the significant 
> risk and ambiguity involved with the Review Period of Position 1, I'm 
> surprised to see people advocate that it brings clarity, especially 
> given the context in which this Forum has historically operated, and 
> in which proponents of Position 1 are presently trying to operate (by 
> asking Patent Counsels to review 3 significant changes 
> simultaneously). There's nothing to further prevent someone from 
> putting forward 5, 10, or 50 of these - if they can find co-endorsers 
> - and completely execute a Denial of Service on companies patent 
> counsel, or force members with large IP holdings to incur significant 
> costs or risk, because Members cannot be certain that the Ballot will 
> fail. It's a system rife for abuse, and I believe the launching of 
> three concurrent review periods is, itself, an example of abuse, and 
> fundamentally why we disagree with Position 1.
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