| Eduardo, Some additional responses in-line On May 18, 2010, at 7:35 PM, Eduardo Gutentag wrote:
Thank you Bob, for the clarification. Seeing as lines
31 to 35, according to this clarification, relate to control issues
(which is what the definition of Affiliate on line 20 uses as a
measuring rod) and not to legal issues, you (the IPR process, the Board, etc.) may consider
modifying the word "status" on
line 33 to "controlling status, or lack thereof,"
Makes sense to me, since control is what is probably important, we will discuss. Note that there is parallel language in the member agreement that would need to be synched.
Regarding the use of "and" in lines 353, 263, etc., I am afraid that I
was not 100% clear in my comment. What I was protesting was the fact
that since a Final Maintenance Deliverable by definition (defs 11 and
14) and necessity contains an OASIS Final Deliverable, then it appears
to me that lines 352-354, for instance, talk of Licensed Products that
implement both a Final Deliverable and a Final Maintenance
Deliverable at the same time, which would seem impossible. The "and"
there is misleading and should be replaced by "or".
A lawyer drafted it, so I will ask him and the committee. It seems to me that since conformance is something left to the specifications to define, and since an implementation might have interpreted the original spec in the same way that the "maintained" spec clarified it, it may be possible. OTOH, my reading of the text suggests that lines 340-352 indicate the willingness to license a) and b) which seems to indicate that a covenant to license the base specification is extended to the maintained version as well, thus the and. It seems strange to have a covenant to license the base specification "or" the maintained specification. Why would a licensee want a license to the base spec "or" the maintained spec; most likely the licensee would want both or more likely they would license the base spec and like to have the original license extend to the maintained version. The intent of this wording is to accommodate current legal practice that licenses include not only the original document but revisions that include corrections.
Regarding the self-referencing of the policy, if that's the case, why
"before"? I still don't get it, sorry.
If the motion said "after", then it would effectively be equivalent to "whenever" since it is "before", then it implies a deadline for staff to announce the new policy in time for implementation on that date (60 days before). If it were effective "on" then it would presume the date of notification to be precise which is not that likely to be a properly calculated date in the heat of a board meeting. So, I elected to pick a feasible date "before" ;-).
And finally, regarding the "to be discussed" wrt retroactivity, I
really don't think you can impose IPR obligations retroactively, no
matter what the TC wants currently, unless you ensure that everybody
who ever incurred in an obligation has agreed to this new one.
What I think needs to be discussed is that now that (or if) a maintenance activity is defined which goes beyond the currently defined errata mechanism, the opportunities for inclusion in charters needs be discussed in the process committee. I assume that new charters might include the reference and current charters might also include it by the charter revision process which is pretty rare.
Again, thank you for your attention and clarifications.
On 05/18/2010 03:25 PM, Bob Freund wrote:
7ECE2076-1E84-461D-8DF2-4587DBBF51B9@hitachisoftware.com" type="cite">Eduardo,
thanks for your comment.
I will attempt to respond in-line
Other committee members are welcome to chime in too :-)
thanks
-bob
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
--
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
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