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

Re: public opinion on W3C

From: Chris Lilley <chris@w3.org>
Date: Thu, 04 Oct 2001 16:07:16 +0200
Message-ID: <3BBC6D14.4E2A5D13@w3.org>
To: www-patentpolicy-comment@w3.org

> From: Pierre Phaneuf <pp@ludusdesign.com>

> Chris Lilley wrote:
> 
> > > If this passes, I won't be able to do so anymore.
> >
> > Sure you will, because you will be able to point to a
> > publically available specification (juts like before)
> > but now, you will be able to point to existing patent
> > disclosures and license terms as well, from all the
> > companies that helped create the specification. So you
> > can tell at a glance what the patent status is from
> > those companies; a big advance on having to ask them
> > all individually, or hope that they don't have any
> > patents, or whatever you did before. What did you do
> > before, by the way?
> 
> Before, I hacked my own incompatible crap out of spite, with all the
> expected usefulness (none).

;-) I'm sure you do yourself a disservice there. I expect you did what
most folks do, in fact, hope that there is no problem and as long as no
lawyer sends you a lteer, you are fine.

> Of course, having up-front notification about patents is nice. 

Ok, good. And the best way to get this upfront notification is to
require the members of the working group while the spec if in
develomnent) and the W3C in general (once the spec is stable) to declare
their patents and the license terms.


> I wish I
> had a little guy over my shoulder telling me when I am using a patented
> thing unknowingly, so that I would save time by not doing open source
> implementation of them.

Yeah, don't we all.

> But this is not the Right Thing, it is only a nice thing. 

OK.

> The Right
> Thing would be for me to code whatever the hell I want without getting
> idiotic subpoenas about how I'm supposed to know that I'm not the only
> one with a brain on Earth.

Grin. I agree that this is the right thing. Personally, I think that
software patents are a bad thing in general and a very bad thing if
there is not adequate investigation of prior art before granting them;
and I am glad that here in Europe we don't have them. Of course,
European developers still want their code to be used in the USA and
other counties, so software patents still affect their work.

> 
> In particular, I find an "open standard" that has a supposedly
> "non-discriminatory" licensing policy pretty closed and discriminating
> when it just prevents me from implementing it.

As opposed to just not knowing at all, which was the situation before
and apparently did not stop you or anyone else from coding. Wheras now
you know which of the companies that developed the spec already gave you
a license to develop whatever code you want even if it does infringe on
their patents, and which ones did not.

>  Of *course*, I know that
> the RAND doesn't mean all standards adhering to it will require any
> royalties

Right. There are two things here and they need to be considered
separately:

1) The license that companies make in general on any current *or future*
patents
2) The license that they make on specific, named patents that are
claimed to be required for a particular spec.


For case 1), any company that gives an RF license gives you one less
company to worry about. You will not be paying them anything unless you
want to sue *them* for patent infringement.

For case 2) there are three things that can happen

a) A company gave RF in case 1) so you don't know or care what patents
they have
b) A company gave RAND but they have no current patents that are
relevant. Any future patents would be after the spec in question was
already there, so prior art should stop that future patent being granted
at all, supposedly
c) A company gave RAND and cited a patent by number.

In case c) you can work round it, as you mentioned in your earlier post.
Or you can decide that there is enough prior art that the patent is
worthless and you and everyone else can go on ignoring it. (there is an
Australian patent on "a circular transportation facilitation device" aka
the wheel. I don't see all transport grinding to a halt anytime soon.
The patent was filed by a patent lawyer to demonstrate the need for
better checking of prior art when granting patents.)

> But it open the door, and once it is open, I bet you'll see companies
> gushing in. 

No, it does not open the door. It recognises that the door is open, that
there are two doors, and requires people to say which door they are
using.

> In particular, I can all too easily envision a world where
> streaming media protocols are patent-ridden and where I'd have
> absolutely no hope of ever seeing the software to play those supposedly
> "open standard" streams on Linux ever appear. Yay for interoperability.

So if there is a W3C working group set up on streaming media, you and
others will question loudly if it is chartered to be RAND as opposed to
Royalty Free. Good.

> At least I would get sued because I unknowingly used patented
> technology, that's the good side? All right...

No, its a bad side - but its a bad side of software patents, not a bad
side of the W3C having a policy to deal with software patents.

> > > Don't do this to us!
> >
> > I agree about "don't do to us what happened with
> > GIF". We are taking steps to ensure that this is not
> > done to anyone, at least for W3C specs.
> 
> Let me be clearer. I'll define "this" as "make standards that we won't
> be able to make open source implementation of without lawyers knocking
> my door down". 

OK. 

> RAND doesn't look like this to me.
> 
> Regarding your example about GIF, times have changed. Now, patents
> aren't used as much in submarine kinds of way.

Really?

> They go with it in more obvious manners nowadays, since this is
> "required to be innovative". Large companies licenses each others
> patents (i.e. MP3, AAC and a number of similar codecs) and leave open
> source developers out in the cold. "So long, suckers", they tell us.

Right. I agree that the 'circulating patent pool' where a few large
companies pay each other large sums of money to keep their smaller
competitors out of the game is a very bad aspect of software patents. If
W3C were to produce sucha specification there would be lots of early
warnings because the working group would be RAND, the spec would say it
was RAND and everyone would know that the intention was to make a
fee-bearing spec so they would not waste time implementing it. And all
W3C specs have to go through a Candidate Recommendation phase where they
get implementation feedback. No implementatiosn means no progress. W3C
would not be well served by making specs that the open source community
cannot implement; it would just delay progress of the spec and increase
the chance that it never made it to W3C Recommendation at all.

As I mentioned, W3C did not invent software patents. We are just trying
to come up with a way to deal with the fact that they exist; a way more
intelligent than sticking out head in the sand like an ostrich and
hoping no-one bites our ass. ;-)


>  W3C didn't call me a sucker in the past, will it do so in the future?

Well, I certainly have no plan to ....

> 
> There are "open standards" like JPEG2000 and MPEG4 in development, where
> it is widely known that they are patent-ridden. How "open" is that?

I agree that they are patent ridden and I agree that people respond to
that by ignoring specs or implementing parts of them (see JPEG for
example - it is used a lot but the parts that are patented are just not
used at all).

On the plus side, ISO does require that patents be disclosed by the
folks makinmg the spec. W3C is going to do that, too, because it helps
avoid some nasty surprises.

> Non-discriminatory?

No, it is not non discriminatory. Perhaps someone from ISO can correct
me if I am wrong, but I believe that ISO just requires necessary patents
to be declared. It makes no restrictions on the licenses on those
patents. W3C will require as a bare minimum, RAND. And will encourage
RF. 

> Again, don't do this to us, *please*.

W3C did not invent software patents. We don't have a magic wand to make
them go away. What we can do, for specifications that we produce, is to
make it clear for developers what the status is in terms of patents and
licenses. Then developers can make an informed decision about what to
implement, how to implement it, and what to avoid.

And as I mentioned, it is W3Cs interest to encourage open source
implementation of our specs since we need implementations to pass the CR
phase.

-- 
Chris
Received on Thursday, 4 October 2001 10:07:18 GMT

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