Bob, responding as you requested… Comments which may be helpful or not helpful depending on the reader’s point of view… - There’s no place on the Membership Application for a new Member to indicate any purported [Necessary] Affiliates. The new member just attests that there are none, or that the Necessary Affiliates are bound to the Agreement (the third case, countersignature, has never happened). - Staff might inquire about status, but they have no place in making determinations about “affiliation” – the members declare this. Thus, there’s no month-by-month tracking; if the board wants this, we’ll need to set it up. I would presume that “substantial” might mean “Member has declared [non] affiliation with X”, but that’s just my supposition. Just as we don’t look into patent declarations to see if they are really valid, I don’t think OASIS looks deeply into affiliations to determine whether or not a “Necessary Affiliation” relationship exists, which might imply some IPR obligations. - It’s also not clear if the [passive mode] added lines are directions to staff, or actually some kind of agreement among all the OASIS Members that they (individually) will not challenge affiliations unless “substantial” changes occur – which begs the question of “What’s substantial” and “change to what, since we don’t have a table of existing affiliations”… I guess the West Texas court might take this into consideration…? - It’s time for this proposal to be discussed in the full board; hence it’s posted for discussion/approval next week! I re-read the and/or sections noted below, and it looks consistent to me as it’s currently written – e.g., it’s not all “and’s” *or* all “or’s” – it’s a mix. But I’d be happy to hear from others… From: Bob Freund [mailto:bob.freund@hitachisoftware.com]
Sent: Tuesday, May 18, 2010 3:26 PM
To: Eduardo Gutentag
Cc: oasis-board-comment@lists.oasis-open.org
Subject: Re: [oasis-board-comment] Board Agenda proposal from IPR committee Eduardo, I will attempt to respond in-line Other committee members are welcome to chime in too :-) On May 13, 2010, at 12:44 PM, Eduardo Gutentag wrote:
Comments regarding http://lists.oasis-open.org/archives/board-agenda/201005/msg00000.html
-- regarding proposed lines 31-35: "substantive changes" is vague and undefined; the purpose of this modification is unclear. If the intention is that affiliation status is changed only after legal changes take place, it should say so: "until legal changes occur to the status by which..." Otherwise this is way too vague to mean anything. I think that one of the cases in mind is the sort of partnership between two entities where ownership might be measured or re-evaluated from time to time based on metrics such as depreciating value assets or might be of the nature of a 50% initial ownership joint venture with options that might be exercised at some future date. The applicant makes certain representations of affiliation on the membership agreement such information is used by OASIS staff to confirm that the member is not an affiliate at the time of membership application. In some of these cases it might be onerous to attempt to track changes as they may occur from month to month and may be meaningless to the partners or the entity from the perspective of actual control, and if affiliation status were to change dynamically, it would be difficult to bind, unbind, and bind again one of the partners to ipr commitments made by the member based on these changes or to ask the member to become a non-menber and ship membership perhaps temporarily to one of the partners. Smallish events such as the issuance of classes of securities by the member that may change the mix of ownership from time to time have the potential of changing the literal determination of affiliation that we use. Substantial changes, I think we might agree, are of the nature of a sale of all or a large controlling portion of a entity to another. Note that the sorts of changes that I mention above can occur without any fundamental legal change of the entity or with its governance, but which might, due to the definition of affiliation, cause a change to membership status or ipr relationships as they are used in the policy. Sure, substancial changes are subjective, but there is a court in West Texas that can be relied upon to rule should that become a problem. So far, there has been only one known instance of a member in this position at OASIS, and the issue was raised to provide clarity as to the members's status.
-- lines 353, 364, 390, 426 use "and" when talking of Final Deliverable and Final Maintenance Deliverable; on the other hand, lines 356, 393, 437, 445 use "or" when talking of them. May the Board please consider the inconsistent use of "and" and "or" and perhaps decide that, since a Final Maintenance Deliverable includes the Final Deliverable it maintains, the only proper use is "or" in this context. and is used when the commitment is made both, or was used in those circumstances to mean either and has to do with the positive or negative assertion in the accompanying condition. We will check with legal as to the usage.
-- the proposal to the Board includes a proposed date of "on or before July 31, 2010". How much before? What would preclude the Board from making it effective immediately? Perhaps the intention was to say "on or after July 31, 2010"? The policy, in a self-referencing sort of way, indicates that it cannot become effective until 60 or more days from the date of written notice to membership, so in order for it to become effective on July 31 it would need to be distributed to members by the end of May which is just after the next scheduled board meeting.
-- further as regards the effective date: may the Board consider clarifying that the new IPR Policy will affect only TCs formed after the effective date of the new Policy, not retroactively to existing TCs. Intentionally to be discussed as to when a tc can add a maintenance activity to its charter; process cttee to consider as well
Thank you.
-- Eduardo Gutentag Director, Standards Strategy & Policy Oracle Corporate Architecture Group Phone: +1 510 550 4616 Fax: +1 510 550 4616 SMS: +1 510 681 6540 |