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.