[cabfpub] Application of IPRA to Forum activities

[Kirk Hall]

This message relates to Agenda Item 9 for the Thursday teleconference of the CABF -" Bylaws and existing Charters update."

A small group of us have been working on possible amendments of the Bylaws to present to the Forum.  One of the issues we wanted to think about was this: To what extent does our IPR Agreement (IPRA) actually apply to work we do at the Forum level (as opposed to work we do at the Working Group level), and are there any special dangers we need to be aware of?

For example, could work we do at the Forum level somehow require a member to disclose its IP under the IPRA?  This is relevant to the question of adding a new Bylaw allowing the Forum to create Subcommittees to work on administrative matters such as Governance and even Infrastructure.  (As a reminder, Working Groups can create Subcommittees, but the current Bylaws are silent as to the Forum's ability to create its own subcommittees).  In prior discussions, some members have expressed IP concerns about subcommittees at the Forum level, but the concerns have been very general.

The good news is - it's not a problem to allow the Forum to create Subcommittees because the changes we made in Ballot 206 really nail down this fact: the IPRA only applies to Guidelines enacted by a WG in which a member participates.

Also, this same language makes it pretty clear that any work or ballots in the Forum itself (or any future Subcommittees of the Forum) will not trigger the requirements of the IPRA.  (Of course, we also must avoid enacting new Guidelines at the Forum level to make sure, but we have no intention of creating Guidelines at the Forum level or in any future Subcommittees.)

This is logical, as a key purpose of Ballot 206 was to push all work on Guidelines down to the Working Group level, and reserve new Working Groups for new certificate types (under Ballot 206, Working Groups were not intended to be used for purposes other than Guidelines for different certificate types, such as administrative matters that did not involve new Guidelines.)  Members could choose not to participate in particular Working Groups, in which case they did not have to disclose their IP relevant to Guidelines created by those Working Groups.

Someone could no doubt read the IPRA and come up with edge cases (or lazy wording) and say there is some IP danger to activities at the Forum level, but I think the many references to "WGs" in the updated IPRA shown below are clear, and that we don't have any IP problems at the Forum level itself.

We can discuss this issue on our Thursday call.  Here are relevant excerpts from our current IPRA.

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Excerpts from IPRA v1.3

1. Overview This Intellectual Property Rights Policy describes: a. licensing goals for CA/Browser Forum ("CAB Forum"); b. the patent licensing obligations that Members will undertake as a condition of participation in CAB Forum Working Groups, along with means of excluding specific patents from those obligations; ***

3. Patent Licensing Obligations of Participants The following obligations shall apply to all Participants with respect to the Working Groups in which they participate. ***

4.1 Review of Draft Specifications. Prior to the approval of a CAB Forum Draft Guideline as a CAB Forum Final Guideline or Final Maintenance Guideline, there shall be a review period during which Working Group Participants may exclude certain Essential Claims from CAB Forum RF Licenses. ***

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 Working Group's Guideline approval process as specified in its charter, Participants may, within the Review Period, exclude Essential Claims ***

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 with a copy to the appropriate Working Group Chair and the CAB Forum public mailing list (public at cabforum.org<mailto:public at cabforum.org>) ("Exclusion Notice") within the Review Period. ***

4.5 New Participant Reviews. When a new Participant joins a Working Group, such Participant shall be permitted not less than forty five (45) days to review ***

6.2 Copyright License Grant Each Working Group Participant grants to the other Participants in such Working Group an irrevocable, worldwide, perpetual, royalty-free, nontransferable, nonexclusive copyright license to (1) reproduce, modify and distribute (in any and all print, electronic or other means of reproduction, storage or transmission) its Contributions for the purpose of developing and publishing Draft Guidelines and Final Guidelines ***

6.4 Representations and Warranties Participants that submit Contributions, by making a Contribution to a Working Group, represent and warrant that, to the extent personally known to the individual Contributors under their control: ***

8.3. Other Key Definitions ***

d. "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) that 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. ***

f. "Final Guideline" is any version of a Draft Guideline that the Working Group Participants have agreed is a final version of such Draft Guideline pursuant to the Working Group process for approving Final Guidelines.

l. "Working Group" means a working group that has been approved by the CAB Forum or Working Group in accordance with the Bylaws. Working Groups may be either "Legacy" (as defined in Section 5.3.4 of the Bylaws) or "Chartered" (as defined in Section 5.3.1(a) of the Bylaws), and they may designate their own Subcommittees, as described in Section 5.3.1(e) of the Bylaws.



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