[cabfpub] Draft Notes of IPR Policy (Ballot 183) phone call 10-January-2017

Ben Wilson ben.wilson at digicert.com
Mon Jan 16 19:43:46 UTC 2017

Draft Notes of IPR Policy phone call 10-January-2017

Present:  Ben, Ryan, Gerv, Rick, Barry, Rich, Kirk, Dean, Chris, Amrita, Virginia, Robin, Doug, Jeff, Jeremy

Virginia had circulated a draft of proposed Ballot 183 along with a flow diagram and had responded to questions on the list. She asked for additional questions, comments, and suggestions.  She said that she would like to start the 7-day discussion period relatively soon.  Kirk noted that the focus of this effort is to update the bylaws for consistency with the IPR Policy.  Ryan noted that he had circulated some hypothetical situations that he wanted people to consider and determine whether they were important issues or non-issues.  He said that the issues revolve around (1) how the PAG will run, before the PAG convenes, so that we have some form of agreement,  and (2) the time bounds for issues, which can be addressed by setting actions based on the calendar rather than action by the Chair.  Ryan would like that a working group be formed, prior to the ballot should there be IP disclosures, to function as a PAG.  That would address the mailing list, who can participate, keeping of minutes, determination of consensus, etc.  In other words, using our existing bylaws concerning working groups to shape the formation of PAGs.

Virginia expressed concern that the procedural change not require an amendment to the IPR Policy.  The PAG should be an ad hoc group, so that it can be quick and nimble and not drawn out.  Section 7 of the IPR Policy already specifies how a PAG is formed.  Kirk suggested that the first order of business for the PAG be to discuss this issue-process and procedure, but that the contents of Ballot 183 be limited as proposed.  Ryan said that a limited approach would be problematic because the current approach for Ballots 180 to 182 give too much power to the PAG.  He would like more structure and less ad hoc free-wheeling.  He would like more structure, such as the PAG having a work-mode like a working group, while still being light and nimble.  Kirk didn't want to amend Ballot 183, but suggested that Ryan and Gerv propose another ballot to address what they want.

Virginia noted that the PAG provisions in the IPR Policy have been modeled after those of the W3C.  Ryan said that the PAG under the Ballot 183 proposal has a much more critical role over the progression of ballots and concerning the adoption.  He said it depends on whether the PAG serves in merely an advisory role.  So he would like Ballot 183 modified so that the PAG isn't the gatekeeper.  Virginia said that in the W3C, if the PAG recommends not to proceed with a technology, then the working group has to address that.  Gerv said that the problem relates to new text in (iii) that was added to the draft of Ballot 183.  There was some discussion as to whether a proposal would have to restart at square one with another review period.  Kirk said that (ii) could be implemented without needing to add (iii).  Gerv agreed, and said that (ii)(A) was sufficient because a participant could vote again after the PAG had made its recommendation.  Kirk reiterated that Ballot 183 should not be amended further.

Ryan said he was still concerned about the PAG formed to address Ballot 182 and the various obligations placed on the Chair of the Forum because as humans we're prone to error.  He'd like a programmatic solution to the progression of ballots to final guidelines with calendar-based triggers.  Gerv agreed.  Ryan said that he would like it so that each member is required to take appropriate action.  For example, if the review notice period is automatically triggered at the close of a ballot, then members cannot say, "oh, we were waiting on the Chair's review notice," which was the situation with Ballot 169.  An automatic approach provides better clarity for members, their legal teams, etc.  Ryan said he hoped such changes would be minor.

Virginia asked about a hypothetical where exclusion notices are sent to the Chair and the Chair doesn't circulate them.  Gerv said this would be handled with a requirement that exclusion notices also be sent to the public list.  A member would know if they had appropriately disclosed because they would receive a copy.  Virginia said that the bylaws could be amended to state that exclusion notices be copied to the public list, and that doesn't conflict with the IPR Policy.   Ryan, Gerv, and Ben agreed.

Gerv said he wanted to raise another issue about redundant language in the proposed change to  the bylaws and the principle of "DRY"- Don't Repeat Yourself.  Proposed new section 2.3 repeats section 2.2, and he wondered whether that could be streamlined.  Virginia said that she'd revisit that section.  Gerv said he thought it could be rewritten using three sections with the first one holding all of the common stuff.

Gerv said that subsections l.(ii)(A) and (B) talk about "material changes" and he wondered about who got to  decide what was and wasn't material.  Virginia said that non-material changes were things like correcting typos and editorial-type changes.  Gerv said that he preferred not differentiating on whether changes were material.  Ryan said he also preferred to stay on the side of caution.  Rich said he agreed, that with the limited number of ballots that are affected by this process any change should be sent back for the full process.  Chris agreed that it would be the more prudent approach, even though it could potentially slow down the process.

Gerv said he had other changes and comments.  One was that the ballot didn't do anything outside of section 2.3, but he thought that the approach was too narrow, and that section 2.2 needed to be distinguished from 2.3.  Virginia said she would look at it.  He also said that subsection (e)'s discussion period was not necessarily a 7-day period, but a minimum.  Ryan said there was some ambiguity, but Gerv said that the existing language in section 2.2 says "there shall be a discussion period of at least seven calendar days", so there is no ambiguity.

Virginia said that if anyone else had comments or questions that they should email them to her.

Ben Wilson, JD, CISA, CISSP

DigiCert VP of Compliance

+1 801 701 9678

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