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W3C Patent Policy - can we please rename the W3C to USW2C!

From: Alexander Falk <al@altova.com>
Date: Tue, 2 Oct 2001 05:40:37 +0200
Message-ID: <0FED160BABE4D311AD2E0050DA465785531AD9@medusa.vie.altova.com>
To: "'www-patentpolicy-comment@w3.org'" <www-patentpolicy-comment@w3.org>
Speaking as the AC representative for Altova GmbH, our company strongly
objects to the current Patent Policy Working Draft. The reasons are:

*	Software patents are - on a world-wide scale - a curiosity that is
only entertained by the US PTO and not by any other country. Specifically
both the European Union and Japan - and many other major technology
providers on this planet - have always upheld the original notion that
patentability requires a physical manifestation. Only the US PTO has decided
to award pure algorithmic, software, or even "business model" patents, such
as the infamous Amazon.com "One-Click" patent. Every patent examiner outside
the US would just laugh at you, if you tried to submit such a claim....
*	The reason that most countries take a more traditional approach, is
that they still support the original idea of why a patent should be granted:
to protect the investment and allow the inventor reasonable time to actually
produce the patented product. The idea was, that it took a couple of years
(2-3) to invent something, then you would apply for a patent, then you would
need a couple of years (3-5) to actual produce the patented thing, and then
you would still have a couple of years (5-7) to sell it and make a good
profit, before somebody else could produce the same thing. While this is
still true, for physical, pharmaceutical or chemical products, this is
essential untrue for software. First of all, any technology older than 10
years is utterly useless. So instead of giving the original inventor a
little headstart, before the competition can produce the same thing, a
patent on software established a monopoly. Secondly, with a traditional
patent, a lot of money is typically spent to bring a product from patentable
draft to actual production. This is, again, not the case with software. A
new technology can come from original conception to actually being
implemented in a commercial product in a matter of months with a budget of
only a couple hundred-thousands of dollars. And thirdly, the patent process
used to rely on the expertise of the patent examiner to understand the
proposed patents and ensure the uniqueness and the unobviousness of any
patent. Therefore, patent examiners always were qualified engineers (e.g.
Albert Einstein) and really took great care in making sure that no patents
are granted for obvious, non-novel, or otherwise ridiculous claims. This is
again not the case with software patents.
*	Unless the W3C wishes to rename itself to USW2C (United States Wide
Web Consortium) any draft for a patent policy needs to take into account,
that the patent-system largely differs on a world-wide scale, and that such
differences need to be considered when you talk about licensing terms and
the like. Why would anyone outside the US wish to pay royalties for a patent
on something that is not even patentable there?
*	Even when taking software patents for granted in a US-centric way,
the questions still boils down to: what is the purpose of a W3C
recommendation? If such a document is supposed to set a standard for
interoperability, connectivity, networking, or any other form of
collaboration, then the ONLY acceptable model for such a recommendation is
royalty-free!
*	All this talk about "defensive" use of patents is - forgive my being
so blunt - nonsense. A wise patent lawyer once said to me: "If a client ever
tells me that a patent will be used defensively only, then I know that I
need to be extra careful and precise in the wording of the claims, because
that one will sure be used offensively within 6-8 months."
*	Regarding the question of whether or not patents in the current form
violate the US constitution or not - this is beyond the scope of this
discussion and should not be the concern of the W3C advisory committee. It
may, however become an issue, once the W3C has decided that it is a USW2C
after all.....

We would, therefore, propose that the W3C needs to take a clear stance in
making sure that ALL recommendations are (a) royalty-free and (b) not
hindered by any US-centric patent system, that may adversely affect
world-wide adoption. I can only fully support the opinion voiced by many on
this discussion: the use of patents in connection with W3C recommendations
must be avoided and - if necessary - those holding such patents must make
them available to the public on a royalty-free basis, otherwise the
technology can NOT ever become a W3C recommendation.

Best regards,

Alexander

... Alexander Falk
... President & CEO
... Altova GmbH - The XML Spy Company

... Member of the W3C Advisory Committee
... Member of the W3C XML Schema Working Group

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Received on Monday, 1 October 2001 23:42:04 GMT

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