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

Including patented material in open standards is a bad idea...

From: Jim Powers <jim@bluetip.com>
Date: Wed, 3 Oct 2001 22:17:18 -0400
To: <www-patentpolicy-comment@w3.org>
I have read through your draft documents, and I must say that the direction
the W3C is taking is a bad one.  Most of the process elements are fine, as
long as the goals of these processes are to obtain Royalty-Free (RF)
licensing or the elimination of the infringing aspects of a standard.  I
would simply stick with the status quo as stated in your draft:

"Web technology has developed over the last decade through an unprecedented
burst of entrepreneurial energy and global cooperation. Both the competitive
forces which have lead to innovative technology, and the cooperative spirit
which has produced global interoperability standards at an extremely rapid
pace have occurred, until very recently, in a market environment without any
significant intellectual property licensing requirements."

The arguments presented in your document supporting the need to
"potentially" include patented intellectual property in standards put forth
by the W3C seem empty, and rife with special interest, not the global public
interest in mind.  Before I elaborate, I must, in the spirit of
full-disclosure make it clear to you that I oppose the patenting of software
of any kind for any reason.  This said, let me have at your points.

"The second decade of the Web has already demonstrated that patents will be
a factor in the ongoing development of the World Wide Web infrastructure."

- This is already bad, by my personal stance, however, let me be more
objective.  The Web continues to be a fairly democratic place, or at least
maintains elements that can be democratic.  This democracy is good, and, as
far as individuals are concerned, enables them to participate in a global
dialog.  Patented intellectual property, regardless of the intent to make
licensing of such IP fair and equal (reasonable and non-discriminatory),
imposes barriers to participating in this dialog.  The vast majority of IP
patents are "owned" (if such a concept can even be stomached) by wealthy
corporations, in wealthy countries.  Eventually, poorer nations will become
more an more of a presence (e.g. China, for one) on the Web.  People, and
companies, in these nations have no chance against the IP war chests of
richer companies/nations to ever participate in the Web dialog because they
are, by nature, not in a position to be paying royalties, after all, they're
poor.  Therefore, including and endorsing patented IP as part of standards
defined by the W3C is synonymous with the W3C stating to those who cannot
compete IP wise or those who cannot pony up the $$$ that the game (the Web)
isn't for them.  I cannot support this.

"1. Convergence: The Web had its origins in the personal computer software
industry, where patents had seldom been a factor in development dynamics.
However, as the Web comes into contact with the telecommunications,
broadcast media and consumer electronics industries, the tradition of
patenting technology from those industries will likely be carried over to
the Web."

- I believe that the Web should, no must, resist this "tradition".  This
"tradition" as you call it is the failed tradition of exclusive club.  Those
who can afford the dues can join.  These "traditional" systems are
practically insignificant compared to the Web today.  These system are
fragmentary, by design.  Telecommunications, broadcast media, consumer
electronics all try to box-in the public into their little boxes.  I cannot
see any meaningful benefit of adopting "their" world view.  Patents to them
are ways to corner users, that is not what the Web is about.

"2. Rise in patent issuance: Patent offices, led by the U.S. PTO, are
issuing patents, especially in the software sector, at record rates."

- I'm not sure this is AT ALL RELEVANT!  So, because the Ford Explorer is
the number 1 selling SUV is a reason to buy it?  How is the fact that the
U.S. PTO rapes people of the right to think, er. issues software patents at
a record rate relevant to your argument?  The fact that the U.S. PTO can
churn out patents faster than ever before is a statement about the U.S. PTO,
and nothing more.

"3. Experience of Internet-related standards bodies: A number of standards
bodies including W3C, IETF, the WAP Forum, and others, have encountered
potential barriers to acceptance of standards because of licensing
requirements perceived as onerous."

- If by "onerous" you mean that organizations HAVE to use STANDARDS that are
available to everyone, then good, I don't see a problem.  If you mean
"onerous" to mean that the standards bodies have tried to incorporate things
into their standards only to find out that these things have patent
infringement problems that could not be ignored (i.e. the patent holder was
interested in extorting the standards body with their ill-gotten goods),
then, I guess the world will have to live without these things, I don't feel
deprived.  I certainly don't feel like these patents should be endorsed.  At
this point we are talking about patent containment.  Don't feel obligated to
incorporate patented IP, you're not and I would prefer you didn't.

"4. Popularity of business method patents: Beginning with the State Street
decision in the United States and continuing through high-profile litigation
between Amazon.com and Barnesandnoble.com, business method patents have
become increasingly significant factor in the ecommerce marketplace."

- This is a blight that should not be supported in any way.

"These factors make it clear that the W3C must have a clear and effective
policy to address the inevitable increase in patent issues that will come
before individual Working Groups and the Membership as a whole."

- I believe the answer is simple: The direct inclusion of patented IP in any
standard put forth by the W3C is strictly prohibited.  Now, for the more
difficult problem, patented IP that gets into a standard by accident.  To be
honest, my gut says that the standard would need to be repealed, or a
non-patented errata needs to be released.  In order to avoid this the W3C
should try to adopt only elements and technology that have either been in
the public domain or the producers of the IP provide their IP without
strings attached.  Patent creep cannot be tolerated in the Web.

Under your "Consensus Points", aren't these thing ALREADY true?  For
instance, there is plain old HTML, then there are HTML tags that can be used
to incorporate, or refer, to proprietary technology as part of the content
of a page.  An example: Windows Media Player a proprietary player that can
play proprietary content can be displayed within a Web page.  WMP can be
patented up the wazoo, but the underlying framework, HTML and HTTP is
ignorant of this fact, and should remain so.  What else are you trying to
get at here?

The implication of the definition of "Essential Claims" is frightening.
What about OSes (Like Linux/Hurd) where patented software is shunned, even
avoided at all costs (not entirely true, Oracle runs under Linux).  But an
OPEN STANDARD that FORCES one to acknowledge, endorse, or even PAY patent
royalties in order to conform to the standard.  This is not tolerable.

Under section "6. Ad Hoc Patent Advisory Group (PAG) Procedure" the process
described is fine, as long as the goals are to a) acquire from the patent
holder a royalty-free agreement, or to issue an errata that removes the
patent infringing elements from the standard.  Patent creep cannot be
allowed.  A RAND license is not a viable outcome.

In Section "8. Member Patent Licensing Commitments", the only acceptable
license is RF, not RAND!

Overall, I am saddened to see so many "Acknowledgements" to people and
organizations who have something to gain from RANDing every dime they can
from the Web.  Notably: Microsoft, Apple, Sun, IBM, Reuters, Nortel, and
Philips.  Where are folks from the FSF or EFF?  Or folks from developing
nations?  Look I know the Web bubble has burst, and companies like
Microsoft, Apple, and Sun are freaking about their financial future because
Web and PC growth is slowing to a crawl.  But don't give in to their special
interest in maintaining growing revenue streams.  The Web is still about
connecting people, let's try to keep their interests in mind.

Jim Powers
Received on Wednesday, 3 October 2001 22:18:47 GMT

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