Process issue with the Bylaws ballot resolution
Don and Board Members,
I'm concerned about the process being followed regarding the Bylaws ballot, in particular about having comments coming out of a ballot that neither PatCom nor the SASB has had an opportunity to discuss. It looks to me that there are unresolved NO votes on that ballot. At least one of those comments concerns text that PatCom has not discussed. Yes, the documents were sent out for review to PatCom members and to the interested parties on the pp-dialog email list and I confess that with my PatCom hat on I missed this issue (and 3 others). With my SASB hat on I did not.
So it's not clear to me what process we are following and as a matter of due process I do have a couple of questions.
Should PatCom review the comments from the latest ballot?
Should the SASB be notified of unresolved comments so they may consider the issue before the result goes to the BoG?
I think the answer to both questions should be yes. Should the process for changing our Bylaws, the rules by which we live, be any less robust than those we use for approving our standards? I think not.
As an example, let me use one of my comments that raises an issue about text that I believe is clearly in error. As a reminder, here is the paragraph in question from the Bylaws and my comment.
From the Proposed Bylaws (p.3 line 20 of the clean copy):
"The Submitter of a Letter of Assurance shall agree (a) to provide notice of a Letter of Assurance either through a Statement of Encumbrance or by binding any assignee or transferee to the terms of such a Letter of Assurance: (b) to require its assignee or transferee to agree to similarly provide such notice and (c) to bind subsequent assignees or transferees to agree to provide such notice as described in (a) and (b)."
My comment to the ballot:
"combing b) and c) for assignees
Bylaws, pg 3, line 22
From our PatCom discussions, I believe b) and c) are intended to be part of a single action in which the holder of a patent right is asked to do two things. In fact, the meaning of c) does not stand well by itself and seems to require the original Submitter to bind all subsequent assignees.
Change line 22 to read '(b) to require its assignee or transferee to (i) agree to similarly provide such notice and (ii) bind subsequent assignees or transferees to agree to provide such notice as described in (a) and (b).' "
I do not believe that what PatCom agreed to in principle meant to have the Submitter of an LoA track subsequent assignees and require that Submitter to get the assignees, in perpetuity, to agree to anything as is stated in (c). The Submitter is not part of those subsequent transfers and has no power and, in fact, no knowledge to force any agreement.
Rick