[cabfpub] IPR policy and authorial intent

[Ryan Sleevi]

On Tue, Nov 8, 2016 at 8:46 AM, Gervase Markham via Public <
public at cabforum.org> wrote:

> I may have buried the lede here, so:
>
> On 03/11/16 16:21, Gervase Markham wrote:
> > be addressed, which would be fine. But would both sides be willing to
> > allow Mark to rule on original intent, and then adopt that method for at
> > least the purposes of getting the Forum back on its feet?
>
> Kirk, Virginia and Ryan: are you both willing to abide by Marc's
> determination, at least temporarily?
>

Hi Gerv,

I responded to this in another thread, but no, given that the IPR Agreement
is a contract executed between members, this isn't suitable.

I appreciate the attempt to appeal to authority, but as it stands, and as
was echo'd on the call and the list, the best path to get us into a clear
state is to ensure that a ballot, regarding process and policy, is held.


> If you aren't willing to accept Marc's determination, it seems like we
> will have to start with the discussion of Positions 1 and 2, achieve
> consensus in the whole forum and agree wording, ballot that, and then
> restart ballots 180-182 or equivalent. This could take a very long time,
> during which the Forum's documents are in an uncertain IPR state and no
> edits can be made to them.


Unfortunately, yes, this is correct - but necessary to ensure the
protections of all members.

As has been stated elsewhere, members must be aware that if Position 1 is
accepted under the standard of "authorial intent" - rather than what your
legal teams reviewed and executed - then it takes only three members to
trigger an IP search for you - and that of your Affiliates (See Section 3
of https://cabforum.org/wp-content/uploads/CABF-IPR-Policy-v.1.2.pdf and
related to understand the obligations of affiliates). Any member that
failed to conduct such a search, and exclude such IP, runs the risk that
the Forum may incorporate such work into a Final Guideline by a vote. To
accept Position 1, at present, and in the absence of any other ballots to
clarify process or interpretation, would likely make it untenable for any
member who holds IP - in any area, whether or not it relates to CAs or
otherwise - to attempt to bring it into scope of the Forum and potentially
invoke RF licensing if members do not diligently exclude.

Concretely, one could imagine that, with the help of two co-sponsors,
significant portions of Apple's IP could be brought into Essential Claim
scope by the creation of the "Sleevi Says Guidelines". If Apple failed to
diligently and completely exclude their IP - including the publication of
unpublished patents - during the review period of Position 1, then when it
went to a Forum vote, they would be gambling as to whether or not quorum
would be met (triggering RF licensing).

These are unacceptable risks to take, at a ballot, and unacceptable costs
to be able to be induced by just three members. Or, as we've seen with some
ballots, only a single Member and its Affiliates.
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