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Re: Summarizing the state of Issue-152

From: Wayne Carr <wayne.carr@linux.intel.com>
Date: Mon, 06 Apr 2015 14:41:38 -0700
Message-ID: <5522FD92.4000503@linux.intel.com>
To: public-w3process@w3.org

On 2015-04-06 13:55, Stephen Zilles wrote:
> After drafting the note below, I realized there could be an edge case 
> for the participant Members of a Working Group. The Patent Policy, in 
> section 4.1 says,
> “If any claims are made essential by the final Recommendation 
> [PROCESS, section 7.1.1] as a result of subject matter not present or 
> apparent in the latest public Working Draft [PROCESS, section 7.1.1] 
> published within 90 days after the first public Working Draft, the 
> participant may exclude these new Essential Claims, and only these 
> claims, by using this exclusion procedure within 60 days after the 
> publication of the Last Call Working Draft [PROCESS, section 7.4.2].”
> If the Working Group does not do a CR on their Edited Recommendation 
> (and the process does not require one currently), then there may be no 
> “final” Call for Exclusions and there could be a question of whether 
> licensing commitments appy. I suspect that a court decision could 
> depend on the interpretation of “subject matter not present or 
> apparent” in the above quote. Purely editorial changes are not 
> supposed to change the subject matter.

  I think it's that editorial changes aren't supposed to change what are 
essential claims.  The patent policy also says: "Note that if material 
new subject matter is added after Last Call, then a new Last Call draft 
will have to be produced, thereby allowing another exclusion period for 
60 days after that most recent Last Call draft."  So, it can add new 
subject matter, but not any new subject matter that is relevant to 
essential claims that could be excluded.

So, it comes down to -- can we trust someone (WG, staff, both) to 
determine that a change doesn't need Last Call/exclusion periods? And 
the answer is probably yes, because we already do that.

There are changes in specs after Last Call/CR and someone decides 
whether there is another CR with an exclusion period again.  That 
happens often.  So, if that's true, someone is already making this 
judgement somehow -- and that is exactly the same thing as editorial 
changes.  They can decide if it's editorial or not just like they decide 
if its editorial or not for changes after the last exclusion period and 
before REC.

If it isn't editorial changes, it goes back to CR and there's an 
exclusion period.

So, I would make clear what editorial changes mean (as I recall, the 
definition is circular in the process) and don't require PR -- just have 
some public notice that also goes to the AC before and then publish.

> Steve Z
> *From:*Stephen Zilles [mailto:szilles@adobe.com]
> *Sent:* Monday, April 06, 2015 1:46 PM
> *To:* public-w3process@w3.org
> *Subject:* Summarizing the state of Issue-152
> Issue-152 concerns a change made in Process2014 that requires Edited 
> Recommendations consisting solely of “editorial changes” to go through 
> an additional step, publication as a Proposed Recommendation, prior to 
> publication as a Recommendation. There are two aspects of this issue: 
> (1) whether “editorial change” is sufficiently well defined that it 
> can be validate by a simple process (as it was in Process2005) and (2) 
> whether patent licensing considerations should require all potential 
> Recommendations to have a Call for Exclusions on their content. See 
> the issue entry and its associated notes and emails for additional 
> detail on the discussion.
> After a fair amount of discussion, we seem to have established the 
> following.
> 1.There is no opposition to allowing purely editorial updates without 
> reviews outside the Working Group. As noted above the issue is how can 
> we tell if a change is purely editorial and could, therefore, be made 
> without AC review.
> 2.One of the main concerns about “editorial changes” is that they 
> could, inadvertently, introduce text that would require a patent to be 
> infringed. There are two separate groups of patent holders that a 
> change might impact: organizations that are participants in the 
> Working Group and everyone else.
> The participants of the Working Group would be required to give a 
> license to any required patent they control, but they are also 
> participating in (and presumably reviewing) the creation of the edited 
> Recommendation. So, further review by those AC Members, would not seem 
> to add anything other than further delay.
> For everyone else, a Call for Exclusions could help identify a 
> possible infringement, but this seems unlikely given people are not 
> likely to do (expensive) searches when they are not required to make 
> commitments to license any patent they discovered. And they are less 
> likely to be able to discover that any particular change is not editorial.
> 3.There is a nuance to point 2 above. An Organization could have been 
> a participant in the Working Group at one point, but left before the 
> Edited Recommendation is prepared. This, however, is covered in the 
> Patent Policy which in Section 4.2 [1] says, “If a participant leaves 
> the Working Group later than 90 days after the publication of the 
> first public Working Draft, that participant is only bound to license 
> Essential Claims based on subject matter contained in the latest 
> Working Draft published before the participant resigned from the 
> Working Group.”
> [1] 
> http://www.w3.org/Consortium/Patent-Policy-20040205/#sec-exclusion-resign
> These observation suggest that:
> 1.There seems to be no particular point in having an AC Review of such 
> changes, and
> 2.If there is to be any further review beyond that conducted by the 
> Working Group, then there should be a formal “Call for Exclusions” on 
> the changed document.
> Business reasoning suggests that adopting 2. above would most likely 
> only result in a 60 day delay and not surface any useful information. 
> And, therefore, that the Process be changed to restore the ability of 
> a Working Group to make purely editorial changes without any review 
> other than that conducted by the Working Group. If they, 
> inadvertently, make changes that are not editorial, then the 
> Recommendation can be changed to resolve the issue that was discovered.
> In concrete terms, in Section 7.7.2, the second paragraph after the 
> Issue, referring to Editorial Changes, change
> “A Working Group may request publication of a Proposed Recommendation 
> or W3C may publish a Proposed Recommendation to make this class of 
> change …”
> TO
> “A Working Group may request republication of a Recommendation to make 
> this class of change…”
> Steve Zilles
Received on Monday, 6 April 2015 21:42:08 UTC

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