W3C home > Mailing lists > Public > www-patentpolicy-comment@w3.org > October 2001

Patents in standards and national sovereignty

From: Rufus Polson <dpolson@sfu.ca>
Date: Wed, 03 Oct 2001 16:25:18 -0700
Message-Id: <3.0.6.32.20011003162518.01281de0@popserver.sfu.ca>
To: www-patentpolicy-comment@w3.org
Dear sirs,
	I am concerned about an issue regarding the inclusion of patent licensing
in worldwide standards which does not seem as yet to have surfaced.  That
issue is national sovereignty and the extension of national laws into
international contexts.  Most patents are national.  Rules vary between
countries; most software patents are U.S. based due to its relaxed attitude
to the granting of such patents.  In the European Union, on the other hand,
software patents remain technically illegal although a loophole exists, and
the question of whether they will be legalized remains open and in vigorous
contention; it is currently by no means settled.  A W3C standard, however,
is intended to be international in nature.  If W3C standards incorporate
patents and mandate paid licensing for the use of those patents, those
patents gain global reach.
	The W3C currently is framing the debate in a way that, perhaps
deliberately, ignores this point.  From the W3C response to the initial
wave of feedback, "W3C also recognizes that software patents exist (and
patent issues have become more prevalent with the growth of the Web), and
ignoring them will do more harm than good."  But software patents don't, in
fact, exist on the global basis on which the W3C is supposed to operate.
The W3C claim not to have an opinion on the validity or appropriateness of
software patents--to be apolitical on the subject.  But the act of
incorporating national patents, largely United States based, and payment
schemes for same into international standards is a very political act, one
which acts as a wedge to push software patents into the rest of the world.
The very framing of what is in fact a controversial subject on which laws
across the world are all over the place ("are there, or should there be,
software patents?") as a simple feature of the world ("software patents
exist . . . ignoring them will do more harm than good") is a political
move.  Whether the intent is political or not is irrelevant--the effect
most certainly is.  If a political effect was not intended, it might be
wise for the W3C to consider whether they wish to advance the political
agenda associated with the extension of U.S. patent laws to the world stage.
	Of course, the only factor that makes RAND licensing remotely plausible is
that these national patents are U.S. patents.  Imagine if some other nation
were the major source of software patents--say, Nicaragua.  Would it not
seem ludicrous to mandate worldwide standards that incorporated Nicaraguan
patents on the basis that "software patents exist"?  Even Chinese patents
would seem to us a rather flimsy basis for worldwide extension.  How then
does this suddenly become simply part of the background of what "exists"
when the major country in which the patents are based is the United States?
	Depending on how things work out politically, the passage of the RAND
licensing policy could result in greater pressure for U.S. style software
licensing worldwide, or even de facto extralegal application of many
existing U.S. software patents on a worldwide basis.  Or it could result in
backlash; if the European Union became disgruntled by this threat to their
sovereignty, they might choose to create a new standards body of their own
and get serious about disallowing software patents.  Much of the world
might follow.  This might be fine as far as it went, but it could result in
there being two Webs: a World-wide Web and a States-wide Web.  Not
quite--the reality would be messy.  Many countries with close ties to the
states would follow the RAND model, and to a large extent the Web would
behave somewhat independent of geography as usual, so any given country
would be mixed, with large corporate sites toeing one line, but many other
organizations and individuals going different directions, and lots of sites
probably doing a kludgey job of trying to support  both sides.  The
interaction between this national-sovereignty alternative standards
reaction and a free-software alternative standards reaction could add still
more complexities.  For interoperability, the results could be nightmarish.
	The ramifications of the attempt to extend national patent laws to the
international stage could be as bad for the web and the politics of
software as the basic problem of the patent-based standards themselves.
The W3C should beware of the unintended political content and consequences
of any initiative that would help national patentholders to charge
royalties internationally on their patents, no matter how
"non-discriminatory" the terms.

Rufus Polson
"And it's a hi! ho!  hey! ho!   Farmers bar their doors 
 When they see the Jolly Roger  on Regina's mighty shores!"    (Arrrr,
Metis)  ---Arrogant Worms, The Last Saskatchewan Pirate
Received on Wednesday, 3 October 2001 19:27:38 GMT

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