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Comments on W3C Patent Policy Framework draft

From: Michael Thome <mthome@bbn.com>
Date: 04 Oct 2001 10:20:21 -0400
To: www-patentpolicy-comment@w3.org
Cc: mthome@bbn.com
Message-Id: <1002205222.30462.67.camel@draught.bbn.com>
I write specifically to address the proposal to allow RAND licencing
terms in W3C standards in some situations.

It appears that option of RAND licencing terms (as proposed in PPF
draft) would invalidate much of the W3C Mission Statement:
W3C's goals:
1. Universal access.  It is difficult to imaging RAND licencing terms
doing anything but place further restrictions (e.g. additional cost) on
web use.
2. Semantic Web.  While it is likely that proprietary standards could
add value to the web experience, it seems *unlikely* that the added
value could outweigh the cost incurred, particularly if for-fee
standards are allowed to leak into core standards.
3. Web of trust.  The issues of overly broad patents and outright fraud
(failure to disclose) are critical issues in today's networked
environment.  The safety of offered by requiring unecumbered or RF
licences would offer a far more valid base to "trust" than RAND
standards which give ultimate control of that technology to a single
commercial interest.  The current situation of encumbered non-w3c
"standards" should be compelling enough to convince anyone that the risk
of "embrace-extend-extinguish" is serious.

W3C's Role
1. Vision.  The fruits of the labor of thousands of people has been
contributed RF to W3C standard.  It is a slap in the face to those
selfless individuals to now consider allowing RAND "standards".
2. Design.  Standards must be public and preferrably with a reference
implementation available at no cost.  A RAND "standard" by definition
confers a competetive advantage to a single organization.
3. Standardization. "W3C contributes to effors to standardize Web
technologies by producing specifications ... that describe the building
blocks of the Web.  W3C makes these Recommendations ...
*freely*available*to*all*."  So W3C is now proposing that you can read
the standards for free but you cannot implement the standard for free!? 
Why not just charge for the standards reports, too?

Design principles of the web.
1. interoperability.  Presumably RAND standards are by-definition
interoperable, since implementations are controlled by a single entity. 
The risk here is that if the controlling entity fails to live up to its
RAND obligations after the Recommendation has been published, it is
extraordinarily difficult to withdraw a standard, leaving the
controlling entity either with undue power over the web or rendering the
standard irrelevant.  Both cases are unacceptable.
2. Evolution.  RAND standards can only be evolved with the full
cooperation and blessing of the patent holder.  It is extremely unlikely
that such a commercial entity will allow any evolution which dilutes
it's income stream and/or power over later standards. 
3. Decentralization.  RAND standards place administrative powers over
portions of the web in centralized locations, subject to the whim of the
controlling entity's beaurocracy. 

Add to the above that any scheme allowing standards to require for-fee
licencing is by definition incompatible with the vast majority of OSS
software, upon which the bulk of the web absolutely depends.

In my opinion, the most likely outcome to allowing RAND-licenced
standards is that those recommendations will be ignored by all but the
patent holder.  The risks and costs (see above) are simply too great. 
If this happens, then W3C will see a decline in the power of it's voice,
since competitors to RAND "standards" will presumably be RF standardized
by another entity without these flaws.

All that said, much of the rest of the proposal appears to be well
thought out and acceptable - In particular full patent disclosure should
be a requirement.  

What is missing is any notion of enforcement: a patent holder must be
held to all obligations.  There is no mention of how failure to meet
such obligations should be handled, other than the implied rescinding of
the Recommendation (which is, at best, an ineffectual threat once the
standard is well implemented).  Further, since W3C is now explicitly
allowing commercial behavior to operate under it's name, is the W3C now
exposing itself to additional legal risk?  What happens when a RAND
patent is aquired by a non-W3C (working group or not) member?  Can W3C
obligations be legally imposed on the new owner of the patent?
A formal statement that failure to meet prior-to-Recommendation
disclosure requirements constitutes fraud would be a good start.

Thank you,
	Michael Thome
	mthome@bbn.com
Received on Thursday, 4 October 2001 10:20:58 GMT

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