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Re: Renewing Working Groups, a proposal

From: David Singer <singer@apple.com>
Date: Tue, 02 Jun 2015 09:26:12 -0700
Cc: Charles McCathie Nevile <chaals@yandex-team.ru>, ab <ab@w3.org>
Message-id: <A050A611-3B54-445E-845C-415705740269@apple.com>
To: Revising W3C Process Community Group <public-w3process@w3.org>
Ah, I thought our (Chaals and myself) action item was to come up with a single document that contained two different answers to the question.  I drafted mine a while back, so here it is.

Chaals and I agreed to write up the two sides of the following question:

* Is a new charter a new group, or a continuation of the previous group, under the patent policy?

The question arises because people think that “an IPR commitment is to a working group” and hence they think that it makes a lot of difference whether a new charter is ‘the same’ or a ‘a different’ WG.  Actually, a careful read indicates to me that this thought is slightly incorrect, and that (at least from the point of view of IPR commitment) it doesn’t matter which way the question is answered.

However, I think that the FAQ may need updating with some points.  I would expect the AB to send their resulting opinion to the PSIG for review, and any suggestions for the updating of FAQs. We do not currently anticipate changing the Patent Policy itself.

* * * *

* The following exclusion opportunities are documented in the Patent Policy:
 + First Public Working Draft, FPWD  (150 days)
 + Last Call Working Draft, LCWD (60 days) (note that as the FAQ says: For the 2014 Process, these entries [that talk about LCWD] apply to Candidate Recommendation.).
 + Resignation from WG (60 days)
 + Joining a WG after FPWD (Max[24 hours, end of exclusion opportunity] - the 24 hours comes from the FAQ #4 <http://www.w3.org/2003/12/22-pp-faq#exclusion-date>)

* The agreement to license applies to "Essential Claims related to the work of that particular Working Group”

Not under question:
* The actual licensing commitment is to documents that reach Recommendation status.
* Prior to that, members agree (the word commit or commitment is, I think, sometimes used, but the PP uses agree) that they will license the Recommendation under the W3C terms.
* When presented with an exclusion opportunity, one may only exclude against material that was not present in any previous exclusion opportunity afforded to the same member (precisely, you can only exclude IPR that is now essential or thought to be so, that was not essential or thought to be so in prior Exclusion Opportunities afforded to you).
* A WG Charter describes the scope of the work of the working group: what it will or might work on, and hence the technical area of any possible agreement (to license) or commitment (to license). No specific IPR is actually licensed or agreed to be licensed merely by joining a WG.

Matters that could be clarified:
* The agreement to license applies to:
  + All IPR,
  + Essential to the Reference Draft
  + of an Exclusion Opportunity,
  + that is not excluded at that opportunity.

* The agreement applies to the Essential IPR in the Reference Draft should it become part of a Recommendation. There is no requirement that there be a single Recommendation (see the FAQ on what happens if a document is split <http://www.w3.org/2003/12/22-pp-faq#doc-split>), or that it be issued by the same WG as the Reference Draft. The agreement is ‘sticky’ to the Reference Draft. It is not linked, scoped, or time-limited to the Working Group as such, it is to the *Work* of the WG.

* The word ‘scope’ is used in two senses, only one of which applies. Changes in ‘scope’ are only the second meaning below:
 + The ‘scope’ of a license grant: areas in which the licensed IPR may be applied (e.g. “you may use this only in fixed equipment, not mobile equipment”). The only restriction that the W3C License permits in this sense, is that the license "may be limited to implementations of the Recommendation, and to what is required by the Recommendation”. It explicitly states that the license "may not impose any further conditions or restrictions on the use of any technology”. 
 + The ‘scope’ of a Working Group: what Recommendation-track documents, and their technical area, that the WG will or may work on.

Practices that could be improved (perhaps we are already good at this):
* Do we send Notice of Exclusion Opportunity notices on Join or Leave of working groups?  If not, we should, noting the Reference Draft of the opportunity, and the deadline, and archiving the notice.  The exclusion opportunity on join could possibly be part of the ‘Join Form’ but this is less than ideal; an archived message detailing the opportunity, the Reference Draft, and the deadline, is much to be preferred.

*  It is essential that Recommendations document their origin document(s), especially when documents are split, combined, change working groups, or renamed, so that the agreements to those origins can be traced.

Questions and answers, possibly to include in the FAQ:
1) What happens when a Member leaves a WG, or does not re-join after a re-chartering, perhaps because of a change in the Scope of the WG?
 — their agreement for Essential IPR on the Reference Draft of the Exclusion Opportunities, that was not excluded, survives. They have no agreement to commitment on any IPR that became entangled as a result of work done after they were a member. The change in scope of a WG does not change their obligations to the scope that they previously accepted.
2) What happens if work is started in one Working Group and then is transferred to another Working Group before becoming a Recommendation?
 — the agreements to license are to a Reference Draft (working drafts etc.) that were the subject of Exclusion opportunities, and those agreements survive and come into effect on the issuance of a Recommendation that incorporates the material of the Reference Draft.
3) What happens if there is no WG by the time that the Recommendation is issued?
 — see above, #2.
4) What happens if the work is started under one charter, and then the group is re-chartered?
 — this is no different from #2.
5) When does an agreement to license expire?
 — If the W3C formally decides to abandon the work. Otherwise, it doesn’t.  The agreement does not become a commitment until the W3C issues a Recommendation, however, which may be never.
6) If one can only exclude against ‘new material’, does that mean that the agreement effectively applies to the Reference Draft of the last Exclusion Opportunity offered?
 — No. If (in the unlikely case that) something was present in the FPWD, and then removed before the LCWD, and then put back in a revised Recommendation, the agreement would survive.
7) Isn’t 24 hours rather short for an exclusion opportunity (when joining a WG that has documents that have issued FPWDs)?
 — No. Don’t do the Join until you have your Exclusion statement(s) (if any) ready to file.
8) What exactly am I committed to licensing?
 — You agree that you will become committed to licensing:
  + All IPR
  + that is Essential to the Reference Draft,
  + the Reference Draft is documented in an Exclusion Opportunity,
  + that is not excluded at that opportunity,
  + when a Recommendation issues that incorporates material from the Reference Draft.

N) So, Is a new charter a new group, or a continuation of the previous group, under the patent policy?
 — It doesn’t make any material difference; the agreement, and any resulting commitment, is to the Work, which while constrained by the Scope of the Working Group as defined by the charter, is not to the Working Group as such.

David Singer
Manager, Software Standards, Apple Inc.
Received on Tuesday, 2 June 2015 16:26:42 UTC

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