- From: Matthew Tuck <matty@chariot.net.au>
- Date: Mon, 01 Oct 2001 18:05:29 +0930
- To: www-patentpolicy-comment@w3.org
I wish to comment on the working draft dated 16 August 2001. But firstly, I would like to say that the existence of this document has only recently come to my attention as the deadline for comments approached. This strongly leads me to believe that the W3C's communication mechanism has, in this case, for whatever reason, failed, and I urge the W3C to extend the deadline for comments in order to fully solicit review from others in the web community. The quantity of comments on this mailing list within the last few days should be ample evidence of this fact. Disclosure of Interest ---------------------- I am a regular contributor to a piece of software called "Bugzilla", a web application that is used to track bug reports. This piece of software is used by many projects and companies, including the Mozilla project, and its use is increasing. I am also follow the Mozilla web browser project that is the basis for Netscape's current browser implementation, and have assisted that project in the past (although not in a direct software development capacity), but do not currently do so to any significant degree. To my knowledge, I have no further ties to any of the organisations that are W3C members. I have read the list of members. Summary ------- My main concern with the framework is the introduction of RAND licensing. I understand the rationale behind the introduction, but I believe that is it flawed, and I wish to demonstrate this. I believe that the introduction of patents into web standards would, in the long term, lead to less and inferior implementations of web standards. As such, I believe the W3C should not be supporting software or internet patents in any form. From my understanding of the situation, the introduction of royalty-based licensing is made on these premises: 1. That it will do no harm, because most standards will remain royalty-free. 2. That it will do good, because otherwise the standard would not be able to exist or not be as technically superior. I wish to dispute these points. I also wish to discuss what is considered non-discriminatory in RAND licensing, as well as issues of patent disclosure and submarine patents, as well as the W3C's position on patents. In the following text, I strongly suggest that organisations consider the effect on them of other organisations having RAND patents, rather than just the benefit they can obtain from having them themselves. Non-Discriminatory Terms ------------------------ "Non-discriminatory" assumedly means that the terms are exactly the same for each licensee. If so, this is an admirable attempt to remove one of the major problems of patents - that discrimination in licensing can make it impossible or impractical for a specific competitor to obtain a patent license. However, merely requiring the terms to be identical for each licensee does not solve the problem. The problem is that not all licensees are able to as easily fulfil the licensing criteria. Typically patent licenses are issued in exchange for money or other patents. This means that large organisations can obtain patent licenses with ease whereas smaller organisations or individuals will be unable to obtain one. This cannot be considered "non-discriminatory" in any practical sense of the word. Therefore these criteria need to be either disallowed or modified. In the case of money exchange, some metric of organisational size could be used to determine the royalty, where at the lowest point the royalty for an individual would be very small. However, it is still very unlikely individuals would be willing to pay even this royalty. Therefore a company would receive neglible royalties from individuals, and so individuals could made be exempt, knowing that doing so would only negligibly reduce the royalty stream for a patent. Indeed, it could increase the use of the standard, increasing their royalty stream. Further consideration could be given to non-profit organisations not being measured purely by size, due to their lesser ability to pay for patent licenses, as profit is not their sole goal. Although the situation of individuals and smaller organisations not being able to implement web standards would probably be welcomed by some of the W3C's members (as no company likes its competitors), the W3C should not forget its moral obligation to the community. RAND Will Do Harm ----------------- RAND will lead to the introduction of standards being royalty based that would otherwise be royalty free. The desire to incorporate exciting new patented features into standards will be too great. But furthermore, companies that currently have no incentive to patent supposedly innovative techniques will have an incentive to do so, even if they are only allowed to do this before the standards process begins. This will result in patent encumbered standards which would otherwise be royalty free. It should be seen that this is not a good thing. The W3C has been introducing standards of good quality that are not patent encumbered for a significant period of time, and has received cooperation from many companies. If RAND were introduced, such unencumbered cooperation would be significantly lessened. Companies would be obliged to seek profit-within-the-law above all, and this for many would mean RAND. That such a strategy would actually be counter-productive to the W3C and it's members is often hard to explain, as the benefits of being royalty free are not as tangible as those of being royalty based. However the rise of the internet is a very good example of how a short term loss will give a large long term gain. RAND Will Not Do Good --------------------- The premise goes that introduction of RAND will lead to standards and features in standards that would not otherwise exist. While this may be true, it is mitigated by other factors. Firstly, as an extension of my previous point, many of the things that will be contributed under RAND would otherwise be royalty free. Therefore, the usefulness of RAND could not be measured on how many people contribute under it if implemented. That a patent encumbered standard is better than no standard, or an inferior standard, is I believe, not necessarily the case. I believe it falacious to say that a technically superior standard is necessarily generally superior. W3C members would no doubt be aware that many W3C standards have been implementled incompletely, incorrectly and inconsistently, diminishing their potential value to some degree. The point here is that a standard is only a body of text - it's value is in the implementations that it leads to. Therefore, a standard could be technically superior, but in fact generally inferior because it leads to less and inferior implementations. This could happen due to patent concerns, which, I believe, is what will occur. In recent years, the "open source" or "free" software movement has resulted in the production of a substantial amount of software that is, in many cases, superior to its proprietary counterparts both in quality and its respect for consumer rights. Much of this software, including the "Bugzilla" software I help develop, is written for the web. Often this software is written by individuals or groups of individuals that have little or no capability to obtain patent licenses. I know, because I am one of these people. If RAND licensing was introduced, this activity would be severely curtailed on RAND standards. Fewer implementations would be created, the lessened competition would lead to lower quality, and the user experience of the web would be lessened. This type of software is being used increasingly by organisations all over the world. They know its benefits from experience, as much as competitive companies try to convince them otherwise. It would be a significant blow to humanity if RAND led to a lessening of this movement. A further reason why no standard or feature might be better than a patent encumbered one lies in the way that software is developed and marketed. Users expect certain features in the products they use. Products do not just implement one feature, especially web browsers. If a patent encumbered feature or standard came to be required by users, then a group that could not obtain a patent license, for reasons already covered, could be unable to compete at all, even if their product were superior in other areas. This would therefore lead to a further lessened competition and worse implementations. This problem is substantially lessened if the W3C does not allow these features to become a standard or a part of one. While products could still have non-standard features introduced, they would be introduced into fewer products than they would as a W3C standard. Comments on Patent Disclosure ----------------------------- While I agree that a company should not be required to perform a patent search when asked to disclose their patent interests, I disagree over what should happen when a patent is not found. I must admit that the document seems to be incomplete and/or difficult to follow in this regard, so I apologise my comments are not totally applicable. If a company is participating in a royalty-free working group, failure to disclosure applicable patents, whether through malice or negligence, must result in an automatic royalty free licensing of those patents to all interested licensees for the purpose of implementing. Any other solution will encourage malice or negligence. A company participating in a royalty-free working group must expect the standard to be royalty free, and as such there must be an implication that they wish it to be. In the case of a RAND working group, they could expect the standard to be covered by patents, but it is still unacceptable to be unaware of what exactly those patents are. So called "submarine patents" are a significant problem that the W3C must address. The W3C would no doubt be aware of the submarine patent on hyperlinks that recently surfaced. Hence, any member of the W3C that does not disclose its patent interests should be deemed to license them royalty free as above. It is not acceptable that we have submarine patents in standards that the W3C produces. Such problems could potentially be many times worse than any problem the W3C is trying to solve with RAND licensing. Furthermore, companies are only being asking to disclose their patent interests. It would be beneficial for the W3C if companies were also asked to disclose any patent interests of other companies that they were aware of. Clearly, there should be no obligation or influence to do patent searches for other companies, but there should be a good faith agreement to divulge what they already know about those other companies' patents. I am not sure of what penalties might be relevant for a failure to do this. Patents In General ------------------ I do not wish it to seem as if I am anti-patent. I believe that patents have benefits in some industries, but that patents are not a God-given right. Instead, they are a legislative right enacted in order to promote innovation. Where they fail to do this, or are counter-productive, as is the case with the software industry, they should not be allowed in that area, or severely curtailed. The idea that companies need to invest lavish amounts of money of R&D in order to write a program is ludicrous. Any programmer knows that is not true, and could create their own program quickly that infringed on any one of 99% of the software patents that exist. While there are certainly R&D costs in software development, it must be remembered that the costs of dealing with the virtual world are much less than those of the physical world where patents have typically applied. As such, long periods as seen in the US patent system must be eschewed as dangerous to the software industry. The W3C needs to support this position for its own benefit as well as for the benefit of its members. This does not mean it needs to take some position against companies who obtain patents. Many companies obtain patents merely so they can countersue if they get hit with a patent infingement suit. However, it does mean that the W3C should take every step it can to ensure its standards are free from patents. Summary ------- So in summary, there are many reasons why RAND is a bad idea. It will result in more royalties needing to be paid on web implementations, and result in less implementations. The perceived benefits are much less than they might seem. I have suggested some possible alternatives, such as exempting individuals, to try and improve on RAND licensing. However, I firmly believe that the only sensible option is to eliminate it entirely. I do believe in the importance of the W3C developing a patent framework. I have suggested increasing disclosure requirements in order to benefit the community and members of the W3C. I do not wish to try and make flippant comments, but I say this knowing its importance, and with the upmost conviction in its correctness : that the introduction of RAND licensing will result in much of the web community losing faith in the W3C, an organisation, which up until now, they believe has done its job reasonably if not perfectly.
Received on Monday, 1 October 2001 04:46:29 UTC