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W3C Patent Policy Framework Comments

From: Matthew Tuck <matty@chariot.net.au>
Date: Mon, 01 Oct 2001 18:05:29 +0930
Message-ID: <3BB82AD1.7F5709E3@chariot.net.au>
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 GMT

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