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Re: The Burden of Proof

From: Daniel J. Weitzner <djweitzner@w3.org>
Date: Tue, 2 Oct 2001 02:15:52 -0400
Message-ID: <00a801c14b09$b08db3b0$b07ba8c0@bayt>
To: "Adam Warner" <lists@consulting.net.nz>, <www-patentpolicy-comment@w3.org>
Hello Adam,

You've take a lot of time to provide you're views on our patent policy
proposal, so I hope you can spare a bit more to reply to my questions.

----- Original Message -----
From: "Adam Warner" <lists@consulting.net.nz>
To: <www-patentpolicy-comment@w3.org>
Sent: Tuesday, October 02, 2001 12:49 AM
Subject: The Burden of Proof

> Hi all,
> Having read through:
> http://www.w3.org/2001/10/patent-response
> "The draft policy does attempt to answer this question: In a world where
> patents exist and may be used to constrain conformance to standards, how
> should W3C best proceed in order to accomplish its mission? Even if a
> patent holder claims that a patent is relevant to a W3C Recommendation
> and that party offers a license, this does not mean that W3C (or anyone
> else) shares the belief that the claim is valid, or that an implementer
> has infringed upon it."
> Thanks for asking and answering the wrong question.

Perhaps there were other questions we should have answered as well, but W3C
recent experience with patents established that we needed to answer this

> In this respect what I originally wrote still stands:
> "What isn't clear is that the appropriate response is for the W3C to
> condone RAND licensing terms and to actively promote non-free licenses."
> What I meant by that is obvious: If the W3C agrees to a Recommendation
> that includes RAND fees/restrictions and the official W3C logo/body is
> used to promote that Recommendation it can't help but promote those
> non-free licensing terms as well (for incorporation into our future
> WWW).
> What we need from the W3C are some well reasoned examples for why RAND
> licensing terms are necessary for the future functioning of the W3C and
> for the BENEFIT OF THE WWW (that's the overriding criterion of everyone
> here after all). So we can all nod our heads and go "Yeah, that makes
> sense."

I believe that we've already provided two sets of answers to this question
in the policy. First is a set of general observations about how the patent
environemnt around Web standards has changed including a number of
situations in which W3C working groups have already run into patents not
available on Royalty-free terms and convergence between the Web and the
telecom & consumer electronic industries. As you know, those industries and
their standards bodies work in a patent-intensive environment. (see section
2.1 Larger Role of Patents on the Web Landscape [1] for more.)

This first set if answers points more to trends than concrete situations, so
the policy offers the second set of answers by creating a process which
requires that just the question pose be answered when we create an activity.
Section 5.1 of the policy requires that:

"Activity proposals and/or draft charters proposing licensing modes must
state clear reasons for selection of the licensing mode proposed. Members
commenting on these proposals during the Advisory Committee review process
should state reasons for their views on the appropriate licensing mode given
the specifics of the Activity, relevant market, along with any other
factors." [2]

With this, I believe we have assumed the burden of answering the question of
the wisdom of RAND or RF for each activity that we start. The question will
be asked an answered again by the entire development community when they go
to implement a specification created in either a RAND or RF group (I expect
that many will refuse to implement specs they believe to be chartered in the
wrong mode) and each time a Working Group published a public working draft
(every 3 months) for public comment. W3C certainly may make the wrong
decision in some cases, but I'm confident that we'll heard about it and hope
that we'll learn lessons about how to make these choices.

> The burden of proof is on the W3C. If they can't come up with well
> argued reasons for why RAND licensing (in addition to RF licensing) will
> benefit the future development of the WWW then I'll just take RF
> licensing, thank you.
> Then we will have concrete examples to discuss the merits of.
> Regards,
> Adam Warner
> PS: The well-reasoned examples have to be better than "Look, they do it
> therefore so should we".

Thanks for taking the time and calling people's attention to this policy.


Danny Weitzner
W3C Patent Policy WG Chair

[1]  http://www.w3.org/TR/patent-policy/#sec-patent-role-web
[2] http://www.w3.org/TR/patent-policy/#sec-mode-decision

Daniel J. Weitzner    +1.617.253.8036 (MIT)
World Wide Web Consortium   +1.202.364.4750 (DC)
Technology & Society Domain Leader  <djweitzner@w3.org>
Received on Tuesday, 2 October 2001 02:13:13 UTC

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