[cabfpub] Public Digest, Vol 54, Issue 2

[Virginia Fournier]

Hi Gerv,

I don’t think the current policy would prevent a member from starting implementation work during the 30 or 60 day review period.  There would be a straw poll before the exclusion review period, so a member would have a good idea of the probability of the ballot passing.  Then, if an exclusion notice is filed during the 30/60 day notice period, the member could suspend its work until the PAG resolves the patent issue and the Forum votes on the ballot, taking into consideration the outcome of the PAG.

Again, some of the issues with such early implementation work are (1) a member’s willingness to dump all of that work if the PAG patent outcome requires it and the final ballot changes substantially, and (2) the risk of patent infringement if the PAG does not succeed in getting a license to the excluded patents.  As previously stated, each member would need to seek advice from their own counsel regarding their risk-tolerance on these risks.  Patent holders have ways of finding out if someone is infringing their patents, especially since they will also be members of the Forum. ;-)


Best regards,

Virginia Fournier
Senior Standards Counsel
 Apple Inc.
☏ 669-227-9595
✉︎ vmf at apple.com





On Oct 3, 2016, at 11:05 AM, Gervase Markham <gerv at mozilla.org> wrote:

On 03/10/16 18:52, Virginia Fournier wrote:
> 1.  Such a change would be contrary to one of the stated objectives of
> the CAB Forum, which is to make sure members have all available
> information about essential claims and licensing terms _before_ voting
> on changes to the Guidelines.

That's the way the aim is stated - but surely the true aims are:

* avoid unknowingly adding something patented to the standard
* avoid unknowingly implementing and deploying something patented in
 their business

My scheme, which automatically puts ballots into abeyance if there is an
IPR disclosure, still meets those two goals, because if there's a
disclosure, it's not added to the standard. And we would make sure the
deadlines were such that no-one was required to deploy before IPR review
was complete.

> 2.  Members implementing Guidelines before the IP review period is
> complete would be at risk of IP infringement, and could have to undo all
> the implementation work done during the IP review period if an exclusion
> notice is filed.  Because of this risk, many members would wait until
> the IP review period was complete and the ballot was approved before
> implementing anyway.

Implementing a change is not done overnight. I suspect members may well
like the fact that they get to start implementing. (Obviously, we
wouldn't set any deadlines for deployment until a good time after the
IPR review was due to complete.) I doubt any IPR problems would ensue
from privately-written code which was then (in a rare case) thrown away
because the ballot did not complete the IPR review process. How would
the patent owner ever know, anyway?

> If a member desires to accept the risk of IP infringement and start
> implementing before the IP review is complete, that is a decision that
> member should make with their own counsel.  However, this should be an
> individual member’s choice, and should not be forced on all members by
> the process.

My process doesn't force anyone to start implementing before the process
is complete. (But again, I think your question has an underlying
assumption that implementing a change is something that can be done very
quickly.)

Gerv