[cabfpub] Proposed Ballot 183 (Ballot process)

Virginia Fournier vfournier at apple.com
Mon Jan 9 23:14:38 UTC 2017


Please see my comments in-line below. 

Best regards,

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

On Jan 9, 2017, at 12:23 PM, Ryan Sleevi <sleevi at google.com> wrote:

On Mon, Jan 9, 2017 at 10:44 AM, Virginia Fournier via Public <public at cabforum.org <mailto:public at cabforum.org>> wrote:
Hi Kirk and all,

Please see my responses to your comments below.  I’ve also attached an updated draft with redlines to show changes from the last draft.  The diagram is also included for those who may not have seen it.


Thanks for the work you, Chris, and others in working on this. I have various questions about "exceptional" situations that might arise due to interpretation differences in this ballot. My hope is that we can try to find a way to minimize these, if possible, or reach common consensus and understanding about what might happen otherwise. Please understand that while this is a rather large list, largely of hypotheticals, my goal is to try to ensure we have, as best as possible, some sort of 'ground rules' for the formation of a PAG in response to Ballot 182. I've intentionally avoided making specific recommendations right now, mostly so that we can see which of these scenarios we believe is likely, without getting distracted by objections to particular solutions. If we can agree that "Yes, this might be a problem" for various bits, I'm hoping we can come to quick and easy solutions. Similarly, if "No, that's not a problem because X" is the answer, then I wouldn't want to add to an already over-long email by discussing possible solutions to non-issues.

It would be great to know if you agree with these interpretations, and the potential issues that arise, or otherwise know if I've missed something in either the reading or interpretation.

2.3(c) - What occurs, if anything, if two Ballots propose modifications to the same text at the same time? More specifically, what is it members are voting on with the Ballot - the redline changes being made or the final text containing the BR-version-at-time-of-voting with redline applied?

VMF:  For a Final Maintenance Guideline (amendment), members are voting on the change identified in the ballot.  Members would not re-approve the entire set of guidelines with each ballot.

  Possible Conclusions/Suggestions that have been made in the past:
   a) The Chair has discretion to correct/resolve any errors/conflicts that arise
     a.1) What would prevent the Chair from intentionally/unintentionally introducing new IPR risk during their modifications?
   b) Prohibit a new Ballot from being started while another Ballot is still pending that modifies that same section/that would otherwise result in such a conflict
     b.1) Proposers right now set the associated timelines (for review & voting); the Bylaws only specify the minimum bounds. Presumably, one might want to consider an upper-bound to prevent ‘squatting'

VMF:  Per Section 2.2(d), the voting period is exactly 7 calendar days (the “Forum shall provide seven calendar-days for voting”).  The review period is “at least seven calendar days.”  However, I don’t think we should allow expansion of the review period given the many comments we’ve heard about speeding up the process.
   c) Allow both ballots to proceed
     c.1) How do we determine what the final text is if both ballots conclude at the same time?
     c.2) Should we require that the 'more recently proposed' ballot include provisions about any existing ballots?

VMF:  Generally, we should not allow two ballots modifying the same exact text to proceed at the same time.  To be clear, what I mean by this is that there shouldn’t be two ballots running simultaneously on Section, for example.  However, you could have two ballots running simultaneously on Sections and

If, for some reason, there are two ballots running simultaneously on the same section (e.g., Section in the alternative, we should indicate in the ballots what happens if they both pass (as we did with Ballots 180 and 181).  

2.3(d) / 2.3(e) - These seven day voting periods both represent lower bounds, not exact bounds. For example, members may choose to extend voting to 14 days if, for example, they believe that holidays might interfere with or otherwise impact a vote.

VMF:  As mentioned above, the voting period is set at seven days.  

2.3(g) - This is an existing issue with the Bylaws, so I'm more than happy to accept it may not be appropriate to change in this revision, but it's worth noting that the membership criteria does not define "product suppliers" - it defines "browsers". I suspect this is one of the many internal self-inconsistencies, but I would hope that in the absence of correcting this, we agree that the interpretation of this requirement is 2.3(a)(3) of the Bylaws (v1.4)

VMF:  I agree that it may be prudent to wait to correct this.  After we get the voting/exclusion process squared away, we could take a pass through the Bylaws to correct this and other issues.

2.3(h) - Is it correct to suggest that "both teleconference and face-to-face meetings" be reworded as "either teleconference or face-to-face-meetings"? I'd be curious to know if this change presents any disagreement, but my understanding is that our Quorum has been taken as the union of the past three.
  a) One possible issue with this Quorum has been the example of the "IPR Task Force". As the Bylaws provide no such definition of what a "Task Force" is, we must conclude either it's 
     1) a "Working Group" (which requires the production of Ballot to charter)
     2) a regular Forum meeting (meaning that Quorum is defined over two weeks - 1 regular meeting, 1 TF meeting, 1 regular meeting - rather than the four weeks it takes for 3 regular bi-weekly meetings)
     3) or a meeting of independent parties outside the CA/Browser Forum (which means no IP protections apply).
 b) Otherwise, we have the possibility of measuring quorum as only those that have participated in both teleconferences *and* the past three meetings, which does not seem a correct read

VMF:  It appears that this group has been called an "IPR Policy committee” before.  https://cabforum.org/2012/11/08/2012-11-08-minutes/  Perhaps we are using the wrong nomenclature.  This was not intended to be a WG, but a group of concerned members who have been trying to resolve this issue that has brought the Forum to a standstill.  There is nothing in the Bylaws that prevents such meetings.

2.3(i) - The Forum leaves it ambiguous as to who is directed to complete this action, as well as what implications this has, if any, for the 'finalization' of the ballot if it's failed to be followed.
  1) For example, if the Chair is on vacation during the close of the voting period, does the Vice-Chair take this action?
  2) If either the Chair or Vice-Chair fail to take this action, is the Ballot still considered valid? Invalid?

VMF:  This section was taken from Section 2.2 of the Bylaws, so this language has already been in the Bylaws for some time.  Has such a problem occurred?  We could always change it to read “the Chair or his/her delegate,” which of course could be the Vice-Chair. 

2.3(j) - This is better in that it directs the Chair to take a particular action, but fails to consider what implications, if any, happen if the Chair fails to take this action.
VMF:  When I worked at Sun, Scott McNealy was fond of saying, “We are all adults, and we have to trust each other to do our jobs.”  I think that applies here.  We’re just not going to be able to cover every possibility and eventuality in the Bylaws.  At some point, we have to trust that people are going to do the right thing.
 1) Assume the Chair is on vacation again. For purposes of IP Review, does the Period begin on that second business day, or does it begin when the chair returns?
VMF:  Again, I think this can be fixed by adding “the Chair or his/her delegate” for situations when the Chair is on vacation or otherwise unavailable.   

2) Assume the Vice-Chair sends out the message. For purposes of the Bylaws, does that constitute notice of the IP Review Period?
VMF:  Yes, if the Chair has delegated his/her authority to the Vice-Chair.
 3) We previously had the very unfortunate issue where the Chair was employed by the same company as the one submitting the Exclusion Notice, and there was some ambiguity with regards to whether the submission was made by the deadline. In line with Kirk's previous remarks, do you believe there's any path to correct this with the Bylaws, or would you view this as necessitating a change to the IPR Policy (specifically, Section 4.3)

VMF:  I’m not sure how it would be fixed.  From my perspective (not Apple’s) and without offering any legal advice, it seems that if a member doesn’t properly submit an exclusion notice, then it has no effect.  If the member ever tries to assert an “excluded” patent in an infringement case, they’d have to explain to a judge/jury why they didn’t follow the proper process for the exclusion, and why they should be able to assert the “excluded” patent after not following the process.  It might be a challenge.

2.3(j) - Again, assume the Chair fails in any of these steps, what do you believe happens / should happen?
  1) Chair fails to distribute Exclusion Notices within two business days after the Review Period closes
  2) Chair distributes an incomplete set of Exclusion Notices
  3) Chair's MTA represents to the person making the Exclusion Notice that mail has been successfully queued for delivery (e.g. the mail server reports to the sender that it's accepted)
     a) Chair encounters a mailbox corruption issue and loses exclusion notices
     b) Chair's antivirus system later quarantines the mail so that it's not kept in their inbox, but instead moved to a quarantine

VMF: The Bylaws are going to be as long as War and Peace if we try to address everything that could possibly go wrong.  Earthquakes, floods, locusts, meteors.  The general rule should be that if the Chair “fails” for some reason to send out the Exclusion Notices, it does not affect the validity of the Exclusion Notices.  However, if the member does not file the Exclusion Notice properly, it would affect the validity of the notice.  I hope the difference is clear.  

2.3(k) - Is there any timeframe for this notification? Unlike other requirements directed at the Chair, this doesn't seem to be.
VMF:  Good point.  We could add something like 2 business days.

2.3(k) - I believe "public website list" was a typo, and it just meant to say "public website” ?
VMF:  There is a list of exclusions on the public website.  However, if “public website” is more clear, I’m ok changing it.

2.3(k) - For avoiding any ambiguity, historically the interpretation was that a Ballot is "in force" when a new versions of the Guideline are made public on the website. Do you believe this section supports that interpretation?

VMF:  I’m sorry - I don’t understand this one.

  a) One interpretation is that "the Initial Vote is deemed to be final and approved" the moment the Review Period closes, but
    1) What happens if the Chair failed to distribute Exclusion Notices per 2.3(j), due to the reasons I mentioned. Is the Ballot's finality keyed on 2.3(j) being successful?

VMF:  I have a hard time imagining this happening.  Wouldn’t people start asking 2 calendar days after the close of the Review Period if they hadn’t seen the Exclusion Notices?  Why would they wait the whole 30 or 60 days to ask?

  b) Another interpretation would be that it would be once the Chair sent out the mail, regardless of what was published on the public website
  c) Another interpretation would be that it is only once it's published on the public website (e.g. once all of 2.3(k) has been met)

VMF:  Sorry, I just don’t see this happening.

2.3(l)(i) - This requires that a PAG to be formed, but there's no guarantee that a PAG will be formed, in either the Bylaws or the IPR. That is, given that the PAG is voluntary, what actions, if any, happen if there are no volunteers for the PAG (for example, due to concerns regarding knowing infringement)?

VMF:  I don’t see this as an issue.  Usually the members who have filed Exclusion Notices will want to be on the PAG.  And those who want the ballot to pass would participate in the PAG.  The PAG could also be a 15 minute phone call with members deciding they don’t want to do an in-depth patent review - it doesn’t have to be anything specific.  

2.3(l)(ii) - How are material changes determined? Is that the discretion of the Chair? The discretion of the proposers? The Forum at large?

VMF:  “Material changes” is generally understood to mean changes other than correcting errors/typos or making minor editorial changes for clarity.

2.3(l)(ii) - How is it determined that the PAG has provided a recommendation? Is it through action of the Chair? Through a formal Ballot of consensus?
VMF:  The PAG will provide a recommendation to the members when it concludes its analysis, delivered by the PAG Chair.  

2.3(l)(ii) - What happens if the PAG declines to provide a recommendation in a timely fashion? For example, a PAG is convened, ten members are initially active, but response tapers and the PAG does not formally recommend any action. What occurs to the Ballot? What occurs to any future ballots?
VMF:  It may not be possible for the PAG to provide a “ imely" response.  It depends on many factors, which are outside the Forum’s control, such as negotiating license agreements with third parties, analyzing other technology to see if it can be used instead of an excluded item, etc.  If members are interested in seeing the Ballot pass, they need to stay involved in the PAG so the ballot doesn’t languish.  I’m not sure why there would be an affect on future ballots - it’s not FIFO.   

2.3(l)(ii)(B) - For purposes of clarity, is it fair to state the the Ballot has failed for IPR (as a distinct case from failing for lack of quorum or failing due to lack of Yes votes)?
VMF:  No, it hasn’t failed.  It is being reconsidered in light of the PAG’s recommendation.

2.3(l)(iii) - It would seem this step would allow the PAG to 'indefinitely' keep a ballot hostage, even if it is successfully voted on by members. This relates to the ambiguity of recommendation (per the questions re: 2.3(l)(ii)), but I'm struggling to find anything that would prevent the following: Ballot proposed, Forum votes yes, IP exclusion received, PAG formed, only the excluder joins the PAG (thus leaving no Chair), excluder (does not make a recommendation in a timely fashion or recommends not proceeding). In the case of not making a recommendation, it seems the Ballot is "hung" forever. In the case of recommending not proceeding, it seems that the cycle can continue indefinitely, until additional members join the PAG (so as to recommend some other action). In that case, we potentially have a 'hung PAG' (imagine 2 members with 50/50 split), and this is why the questions about the nature of a PAG are relevant.

VMF:  If only the excluder is on the PAG, this tells me that the ballot isn’t important to anyone else.  If it’s only important to the excluder, then it might not matter to the rest of the Forum if it’s “hung” forever.  If there are others who are interested in seeing the ballot pass, then they should get involved in the PAG to help it move forward.  Members should not get to sit back and reap the rewards without participating/contributing.

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