RE: Summarizing the state of Issue-152

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.

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