[cabfpub] PAG: Convening of Patent Advisory Group - first meeting Tuesday, January 24 at 17:00 UTC

Kirk Hall Kirk.Hall at entrustdatacard.com
Sun Jan 15 19:19:57 MST 2017


Call for Patent Advisory Group (PAG)

Three Exclusion Notices were filed during the Review Period for Ballot 182: from GMO GlobalSign, GoDaddy, and Symantec.  I attach a copy of each.

Portions of Forum Final Guidelines Affected by Exclusion Notices from Ballot 182: The following

The following sections of our Baseline Requirements were listed in the Exclusion Notices:

BR 3.2.2.4.2

Email, Fax, SMS, or Postal Mail to Domain Contact

Symantec

BR 3.2.2.4.3

Phone Contact with Domain Contact

Symantec

BR 3.2.2.4.4

Constructed Email to Domain Contact

Symantec

BR 3.2.2.4.7

DNS Change

GoDaddy

BR 3.2.2.4.9

Test Certificate

Globalsign


Convening of PAG: I have included portions of the Forum's IPR Policy at the bottom of this message, and attached a copy of the full IPR Policy for your reference.  Section 7 covers the formation and operation of a Patent Advisory Group (PAG).

Pursuant to IPR Policy Sec. 7.1 and 7.3.1, I am hereby convening a Patent Advisory Group (PAG) as PAG Chair pro tem to consider the Exclusion Notices received.

The PAG will meet bi-weekly during the same time period we have used for the IPR Policy Working Group: Tuesdays at 17:00 UTC (which is 9:00 am Pacific, 12:00 noon Eastern), with the first PAG meeting to occur on Tuesday, January 24 and then every other Tuesday after that.  I will send a calendar invitation to the members for this meeting.  Once a PAG Chair is elected by the PAG, the Chair can make changes in the meeting times if needed.

PAG Members: The following people have volunteered to serve on the PAG.  Other member representatives may formally join the PAG as well.  Under IPR Policy 7.3.1, the PAG Chair may not be from any of the companies that filed Exclusion Notices:

PAG volunteers as if 15 Jan 2017

Person

Member Company

Not eligible to be Chair under IPR Sec. 7.3.1

Stephen Cannavale

Comodo



Patricia Forsyth

Comodo



Ben Wilson

DigiCert



Jeremy Rowley

DigiCert



Kirk Hall

Entrust



Brian Jarrells

Entrust



Carolyn Oldenburg

GlobalSign

X

Dean Coclin

Symantec

X


Again, others members are welcome to volunteer to be PAG members - please volunteer.

Logistics: I had considered creation of a special list-serv for a "PAG" email address, but because of the importance of the PAG's work to others, including CAs who are not Forum members, I believe all PAG emails should go to subscribers of the Public list.  For this reason, I recommend we simply use the current Public email list, but start the Subject line with "PAG" for all PAG messages to help people keep track.

We will use the same dial in teleconference numbers for the PAG meetings as we have used for working groups in the past.  I suggest that only PAG members dial in for the meetings (and not other Forum members) in order to keep the PAG meetings focused.  If a member wants to actively participate in the PAG meetings, the member should volunteer to serve on the PAG.

Election of PAG Chair

I am only convening the initial PAG meeting as Chair pro tem, and I will not be serving as the permanent PAG chair.

If you have volunteered to be on the PAG and are interested in serving as permanent PAG Chair, please let me know so I can assemble a list of candidates to circulate before the meeting.  If there are no volunteers, I may ask one of the PAG members to serve as Chair.

Draft Agenda for Initial PAG Meeting:

Here is a draft Agenda for the initial PAG meeting on January 24.  I would welcome suggested edits from PAG members.

1

Convening of PAG

Kirk, Chair pro tem

2

List of candidates for permanent PAG Chair; Election of Chair

Kirk, Chair pro tem

3

Assignment of Minutes-taker

PAG Chair

4

Review of Agenda

PAG Chair

5

Review of W3C process document for PAGs
https://www.w3.org/2007/04/patent-exception-management

Dave Singer, Apple

6

Discussion whether a PAG charter or procedural rules are needed versus simple reliance on IPR Policy provisions as an "ad hoc" group under IPR Policy Sec. 7.1.  Consideration of W3C model, possible supplementary rules.

PAG Chair

7

Brief review of following IPR Policy Sections:
2. Licensing and Disclosure Goals for CAB Forum Guidelines
3. Patent Licensing Obligations of CAB Forum Participants
4.2 Excluding Patents and/or Patent Applications from Royalty Free Licensing Obligations During Review Period
4.3 Conditions and Procedure for Excluding Patents and/or Patent Applications From CAB Forum RF License
4.4 Effect of Exclusion Notice
7.3.2. Possible PAG Conclusions
8. Definition of Essential Claims and Other Key Terms
8.1. Essential Claims
8.2. Limitations on the Scope of Definition of Essential Claims
8.3. Other Key Definitions
c. "Contribution"

PAG Chair

8

Initial review of Exclusion Notices received:

*       GlobalSign

*       GoDaddy

*       Symantec

PAG Chair

9

Creation of game plan for future meetings (in no particular order)

*       Analysis of patents submitted, applicability to referenced sections of BR 3.2.2.4

*       Consideration of whether BR sections involve Essential Claims covered by Exclusion Notice patents

*       Consider possible cross-licensing agreement (see Symantec Exclusion Notice)

*       Consider whether any Exclusion Notices are affected by Member's "Participation"

PAG Chair

10

Assignment of work for next PAG meeting

PAG Chair

11

Other Business

PAG Chair

12

Next Meeting Date

PAG Chair

13

Adjourn

PAG Chair


I doubt we will be able to cover all draft Agenda items in this first meeting.

*****

Excerpts - Forum's IPR Policy v1.2

4.2 Excluding Patents and/or Patent Applications from Royalty Free Licensing Obligations During Review Period.
Except for Essential Claims encompassed by a Participant's Contributions that are actually incorporated into a Final Guideline or Final Maintenance Guideline approved in accordance with the CAB Forum Guideline approval process, Participants may within the Review Period exclude Essential Claims from the CAB Forum RF License. In such case, Participant shall be permitted to either make an election, (i) not to grant a license or (ii) to provide a license with all of the requirements of Section 5.1 with the exception of subsection 5.1 f.

4.3 Conditions and Procedure for Excluding Patents and/or Patent Applications from CAB Forum RF License.
A Participant seeking to exclude Essential Claims from the CAB Forum RF License in accordance with Section 4.2 must provide written notice of such intent to the CAB Forum Chair ("Exclusion Notice") within the Review Period, and the Exclusion Notice shall be effective upon its receipt by the CAB Forum Chair. The Exclusion Notice shall include identification of the numbered section of the Final Guideline or Final Maintenance Guideline whose implementation makes the excluded claim an Essential Claim for each of the issued patent(s) or pending patent application(s) that a Participant reasonably believes at the time may contain Essential Claims the Participant wishes to exclude from the CAB Forum RF License. For issued patents, the Exclusion Notice shall also include the patent number(s). For pending patent applications, the Exclusion Notice shall also include the title and application number(s). If an issued patent or pending patent application that may contain Essential Claims is not set forth in the Exclusion Notice, such Essential Claims shall continue to be subject to the CAB Forum RF License. For unpublished patent applications, the Exclusion Notice shall also include a copy of the patent application. Exclusion Notices shall be published at https://cabforum.org/ipr-exclusion-notices/.

4.4 Effect of Exclusion Notice.
The timing of the Exclusion Notice will determine the effect on the Participant's CAB Forum RF License obligation as specified in Sections 4.4(a) and 4.4(b). If a Participant provides the CAB Forum Chair with an Exclusion Notice in accordance with Section 4.3, then (a) Such Participant's CAB Forum RF License obligation shall remain in full force and effect for any Essential Claims in a Final Guideline or Final Maintenance Guideline that has been finally adopted ("Previously Adopted Final Guideline") by the CAB Forum prior to the date ("Date of Receipt") that the CAB Forum Chair receives such Participant's Exclusion Notice; and (b) Such Participant's CAB Forum RF License obligation shall remain in full force and effect for any Essential Claims in any Draft Guideline for which a Review Period has been completed unless and to the extent that an Exclusion Notice has been given within such Review Period.

5. CAB Forum Royalty-Free (RF) Licensing Requirements

5.1 License Requirements
With respect to Final Guidelines or Final Maintenance Guidelines developed under this policy, a CAB Forum Royalty-Free License shall mean a non-assignable, non-sublicensable license to make, have made, use, sell, have sold, offer to sell, import, and distribute and dispose of Compliant Portions (provided that such license need not extend to any part or function of a product (other than the Compliant Portion therein in which a Compliant Portion is incorporated but that is not itself part of the Compliant Portion) of the Final Guideline or Final Maintenance Guideline that:

a. shall be available to all, worldwide, whether or not they are CAB Forum Members;
b. shall extend to all Essential Claims owned or controlled by the Participant and/or its Affiliates;
c. may be conditioned on licensee providing notice to a buyer of its products or services that they implement an Essential Patent of a particular entity relating to a particular CAB Forum Final Guideline or Final Maintenance Guideline and that licensee's right to sell the products or services to buyer, and buyer's use of the products or services, are conditioned on the buyer's acceptance of the same terms of the RF or RAND License granted to licensee under the CAB Forum IPR Policy
d. may be limited to implementations of the Final Guideline and Final Maintenance
Guideline, and to what is required by the Final Guideline and Final Maintenance
Guideline;
e. may be conditioned on a grant of a reciprocal RF license (as defined in this policy) to all Essential Claims owned or controlled by the licensee or its Affiliates. A reciprocal license may be required to be available to all, and a reciprocal license may itself be conditioned on a further reciprocal license from all.
f. may not be conditioned on payment of royalties, fees or other consideration;
g. may be suspended with respect to any licensee when licensor is sued by licensee for infringement of claims essential to implement any CAB Forum Final Guideline or Final Maintenance Guideline;
h. may not impose any further conditions or restrictions on the use of any technology, intellectual property rights, or other restrictions on behavior of the licensee, but may include reasonable, customary terms relating to operation or maintenance of the license relationship such as the following: choice of law and dispute resolution;
i. shall not be considered accepted by an implementer who manifests an intent not to accept the terms of the CAB Forum Royalty-Free License as offered by the licensor.

5.2 License Term
a. The CAB Forum RF license conforming to the requirements in this policy shall be made available by the licensor and/or its Affiliates as long as the Final Guideline or Final Maintenance Guideline is in effect. The term of such license shall be for the life of the patents in question, subject to the limitations of 5.2(b).
b. If the Final Guideline or Final Maintenance Guideline is rescinded by the CAB Forum, then no new licenses need be granted but any licenses granted before the Final Guideline or Final Maintenance Guideline was rescinded shall remain in effect.

7. Exception Handling

7.1. PAG Formation
In the event a patent has been disclosed that may contain an Essential Claim, but such Essential Claim is not available under CAB Forum RF Licensing, a Patent Advisory Group (PAG) will be launched to resolve the conflict. The PAG is an ad-hoc group constituted specifically in relation to the Final Guideline or Final Maintenance Guideline containing the conflict. A PAG may also be formed without such a disclosure if a PAG could help avoid anticipated patent problems.

7.2. PAG Formation after a Guideline Is Adopted
A PAG may also be convened in the event Essential Claims are discovered after a Guideline is issued. In this case the PAG will be open to any interested Member, though the PAG may choose to meet without the holder of the Essential Claims in question.

7.3. PAG Procedures

7.3.1. PAG Formation Timing
The PAG will be convened by a Chair who shall be elected by the PAG and who must not be affiliated with the company owning the Essential Claim that is the subject of the PAG. The timing for convening the PAG is at the discretion of the Chair. In some cases, convening a PAG before a specific patent disclosure is made may be useful. In other cases, it may be that the PAG can better resolve the licensing problems when the specification is at the Review Period level.

7.3.2. Possible PAG Conclusions
After appropriate consultation, the PAG may conclude:
a. The initial concern has been resolved, enabling the work on the Guideline to continue.
b. The CAB Forum should be instructed to consider designing around the identified claims.
c. The PAG should seek further information and evaluation, including and not limited to evaluation of the patents in question or the terms under which CAB Forum RF licensing requirements may be met.
d. The project relating to the Draft Guideline in question should be terminated.
e. The Final Guideline or Final Maintenance Guideline should be rescinded.
f. Alternative licensing terms should be considered.

8.3. Other Key Definitions ***
c. "Contribution" means material, including Draft Guidelines, Draft Guideline text, and modifications to other Contributions, made verbally or in a tangible form of expression (including in electronic media) which is provided by a Participant in the process of developing a Draft Guideline for the purpose of incorporating such material into a Draft Guideline or a Final Guideline or Final Maintenance Guideline. For a verbal contribution to be deemed a Contribution hereunder it must be memorialized within approved meeting minutes of the CAB Forum.

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