Straw Poll: IPR Policy Section 4.5 – New Participant Review Scope
Ben Wilson
Dear CABF Members,
This is to seek informal feedback regarding clarification of Section 4.5 (New Participant Reviews) of the CABF IPR Policy. The goal is to understand member preferences before I post a GitHub pull request and circulate a ballot to adopt v. 1.4 of the IPR Policy.
Background
Section 3.1 of the IPR Policy states, "As a condition of participating in a Working Group, each Participant
shall, subject to Section 4 below, agree to make available under a CAB
Forum RF License (as defined in Section 5 below), any Essential Claims
related to any Final Guideline or Final Maintenance Guideline of that
particular Working Group."
Section 4.5 currently provides a 45-day review opportunity for new WG Participants. It currently includes a review of "any previously adopted Final Guidelines and Final Maintenance Guideline of such Working Group for any and all Essential Claims and to commit in a separate written agreement to the CAB Forum RF License requirement, as to any Final Guidelines or Final Maintenance Guidelines or Draft Guidelines of such Working Group for which the Review Period has been completed." This language has not been entirely clear, and I believe a question exists as to whether, and to what extent, a newly admitted Participant should also be permitted to review existing Final Guidelines and Final Maintenance Guidelines of a Working Group for purposes of identifying any Essential Claims. (It seems to say that they can, but then they must sign a separate agreement granting/acknowledging a royalty-free license. And we've never had such an agreement in place.)
To help gauge member sentiment, I am proposing a straw poll between the following two conceptual approaches.
Option 1 – Draft Guidelines Only
When a new Participant joins a Working Group, such Participant shall be permitted forty-five (45) days (the “New Participant Review Period”) to review only Draft Guidelines of that Working Group for any and all Essential Claims.
Potential considerations include:
Limits disruption to already-approved Final Guidelines.
Avoids the perception that new Participants are receiving a “fresh bite at the apple.”
Aligns more closely with existing Review Period concepts tied to draft work.
Option 2 – Draft + Final Guidelines
When a new Participant joins a Working Group, such Participant shall be permitted forty-five (45) days (the “New Participant Review Period”) to review Draft Guidelines, Final Guidelines, and Final Maintenance Guidelines of that Working Group for any and all Essential Claims.
Potential considerations include:
Provides slightly more clarity that, if no Exclusion Notice is filed within the 45-day period, there is a royalty-free license for existing Final texts. (I say slightly more, because the grant of an RF license is stated in section 3.1)
Most similar to existing Section 4.5 in the CABF IPR Policy
May raise concerns about reopening settled Guidelines or increasing the risk of late-stage IPR assertions.
Straw Poll Request
At this stage, I'm not advocating either position. The purpose of this message is simply to understand member preferences and surface any considerations that may not yet have been identified.
Please reply to the list indicating your preference:
Option 1 – Draft Guidelines Only
Option 2 – Draft + Final Guidelines
No preference / need more discussion
If you wish, you are also encouraged to include brief comments explaining your reasoning or identifying additional pros, cons, or alternative approaches.
Thank you in advance for your input.
Best regards,
Ben Wilson
Szőke Sándor
Hi Ben,
Thanks for sharing this.
We would lean toward Option 2 – Draft + Final Guidelines, as it seems clearer and consistent with the current approach. That said, we’re open to other viewpoints as the discussion progresses.
Best regards,
Sándor
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Ben Wilson
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Ben Wilson
Dear Members,
You may recall that in my earlier message I outlined two potential approaches to revising Section 4.5 of the Forum's IPR Policy, both of which retained a 45-day “New Participant Review Period” in some form, and I indicated that I was leaning toward Option 2. This week, the IPR Subcommittee discussed the issue further and, after more detailed consideration, reached consensus that neither option fully resolved the underlying structural tension between Section 3.1’s default Royalty-Free (RF) commitment and Section 4.5’s guideline-review mechanics.
In particular, the Subcommittee noted that the CAB Forum’s work is conducted openly and that Draft and Final Guidelines are publicly available (i.e. anyone can "review"). In addition, new Participants execute the IPR Policy Agreement upon joining the Forum. In that context, creating a separate 45-day review period for new Participants is not necessary to ensure notice or fairness, and such processes may introduce ambiguity regarding the status of previously adopted Final Guidelines. We also observed that the current language grants new Participants the right to "review" previously adopted Guidelines (but they already can), and then it says they must execute a "separate" written agreement to grant RF licenses in connection with previously adopted Guidelines (but we already have an IPR Policy Agreement) - and no such "separate-agreement" process has ever been implemented by the Forum in practice.
Accordingly, rather than selecting between Option 1 and Option 2, the Subcommittee agreed that the cleaner and more internally consistent approach is to clarify that Participants join a Working Group “in stream” and assume the same rights and obligations as existing Participants and are subject to the same Review Period framework without any additional or retroactive review period. (The IPR Subcommittee did not want to have mechanisms that could be interpreted as reopening Previously Adopted Guidelines outside the established Review Period framework.)
Therefore, the proposed revised Section 4.5 is set out below:
A Participant joining a Working Group (a “new Participant”) shall assume the same rights and obligations under this Policy as existing Participants as of the date such new Participant joins the Working Group. With respect to any Draft Guideline for which a Review Period is in progress, such new Participant may submit an Exclusion Notice only during the remainder of the applicable Review Period. No additional or retroactive Review Period shall arise when a new Participant joins a Working Group, and such new Participant may not submit an Exclusion Notice with respect to any Previously Adopted Guideline. Essential Claims of such new Participant shall otherwise be subject to the CAB Forum RF License pursuant to Section 3.1.
Please review and share any comments or concerns. After allowing time for feedback, I will finalize the ballot for adoption of version 1.4 of the IPR Policy.
Thank you,
Ben