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Concerns raised by new patent policy

From: <Philippe.Aigrain@cec.eu.int>
Date: Mon, 1 Oct 2001 12:06:50 +0200
Message-ID: <8944D19B724BD4119F22009027CA2F920270FE8E@EX2LUJMOMBX03>
To: www-patentpolicy-comment@w3.org
This message expresses only my personal opinion and does not necessarily
represent the official opinion of my employer, the European Commission.

I am head of sector for Software Technologies in the European Information
Society Technologies research and technology development programme, with
particular responsibility for the field of free software and open source
software. I would like to relay the very serious concerns raised, for many
of the participants to our research actions, by the new proposed policy. I
also would like to contribute the personal view of someone whose daily task
it is to follow the interaction between information and communication
technology and intellectual rights or intellectual property environments.

Let me start by quoting Commissioner Busquin's intervention at the OECD
Global Research Village Conference in Amsterdam in December 2000: "When
counting the blessings of the Internet we should remember that neither
Vinton Cerf nor CERN patented the Internet".

Those requesting a change to the royalty-free patent licensing policy of W3C
have the burden of proving that there is a need for this change. When one
looks at the working draft, one finds the following justification to the
proposed change:
- General statement: "At the same time, many Members invest significant
research effort in the development of their own intellectual property
portfolios, so are concerned about protecting and benefiting from
proprietary technology they have developed or acquired."
- Circumstantial: statements in section 2.1 that as the Web now interacts
with many industries with patenting traditions, and as there is a fashion of
business method patents and more generally of software patents, there is
growing pressure on the standard process to accommodate the patent portfolio
management strategies of the respective players.

Those 2 lines of justification fall short of delivering any real proof that
the change is needed. They basically amount to say that the condition for
the W3C to continue being a successful standardisation arena is ... to stop
doing its job of keeping the Web open and equitable. The underlying
reasoning is: either we give in to some powerful industry players in terms
of ability to obtain royalties for ideas included in the standards (and
patented, mostly in the US, either as processes, or as algorithm, software
or data structures), or they risk to ignore the standardisation process. I
am sure that for many members of the working group, the new policy was
chosen as the best possible compromise, with openness and fairness in view.
But in my opinion, they are mistaken.

The key factor in the success of the Web is not its (sometimes late)
endorsement by large industry players. It is its endorsement by the public.
The trust of the public in the Web, the ability of many small and
independent entities (not always aiming at profit) to develop, experiment,
validate and bring to maturity new information exchange mechanisms has
brought more business to these players that they ever dreamt they could get.
Now that this is taken for granted, their intellectual property departments
would like to capitalise on it and derive revenue from the Web information
infrastructure itself. They also would like to shape the Web on the template
of their existing installed position and ways of doing business in
broadcast, consumer electronics or telecommunications. They are powerful
enough to succeed, but they will hold an illusion. Meanwhile, those who
truly adhere to the standards of openness and freedom of access to ideas
will succeed in the businesses of tomorrow ... if these businesses are given
a chance to exist.

The Web of today is only a pale prefiguration of the networked information
exchanges of the future. The future evolution of such an infrastructure
rests on the continued ability to innovate at an extremely low entry cost.
Patent licensing under the new terms will create no problem for large
companies able to cross-license or for which RAND licensing is an invisible
part of overheads. It will create unacceptable barriers to the distributed
innovation by many small entities.

Richard Stallman has considered to replace the proposed Reasonable And
Non-Discriminatory policy by "uniform fee only". I personally think that
this would still be excessive, and that a royalty-free policy is necessary,
but Mr Stallman's plea may be envisaged as a mid-term position.

Finally, I would like to stress that the new policy pre-empts the result of
a debate on the scope of patentability which is far from closed, in the US
as in Europe.

Philippe Aigrain
Head of Sector "Software Technologies"
European Commission DG INFSO/E2 Office N105 3/54
Philippe.Aigrain@cec.eu.int
Postal address: rue de la Loi 200, B-1049 Brussels, Belgium
Office address: avenue des Nerviens 105, B-1040 Brussels
Secretary: Tania Devroede Phone: +32.2.295.0411 Tania.Devroede@cec.eu.int
Phone (direct): +32.2.296.0365
Fax: +32.2.296.7018
http://www.cordis.lu/ist/ka4/tesss/
This message expresses only my personal opinion and does not necessarily
represent the official opinion of my employer, the European Commission.
Received on Monday, 1 October 2001 06:45:43 GMT

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