Comments on Patent Policy Framework draft

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Dear W3C,

   I have read the Patent Policy Framework draft, and have identified the following areas of concern.

   First, one of the key assumptions is that the investment by W3C members in their own intellectual property must be recouped directly by licensing fees. Certainly, this is one model, and is one that is used by companies developing UNIX, CORBA and SQL technologies. Unfortunately, the consequence has been a fragmentation of standards. Although each group is technically conformant to some basic standard, the pressure to differentiate exceeded the pressure to standardize, resulting in the need of middleware to act as a translation service.

   The WWW will not survive further fragmentation. The damage done to consumer confidence by the JScript/Javascript fisaco, VRML, existing proprietary extensions (eg: Macromedia Flash), the UNISYS LZW patent (effectively outlawing GIFs), poor compliance with existing standards and security concerns over image tag misuse, all lead to the conclusion that fragmentation is not acceptable to the market.

   This is, in fact, demonstrated by an examination of older services on the Internet. With the existance of a reasonably standard web, the use of Archie, Gopher and WAIS has declined significantly. Should the Web become, in effect, multiple services, each requiring a seperate browser to view them, then the Web will have no value. It will be replaced, as its predecessors were replaced, by a standardised service.

   Second, it is assumed that research and development has been affected by a competitive spirit. (Section 2.) There is no evidence of this. Commercial web browsers, such as Opera, have negligable market-share. "Free" browsers, such as Internet Explorer, Netscape, Mozilla and Konquerer, have considerably greater impact on the direction of the World Wide Web. These "Free" browsers do not compete, significantly, with each other or with any other browser. Each has a well-defined niche, with minimal to zero overlap with any other browser. With no overlap, there is no competition. The one time any significant competition occured was when Netscape ported their browser to Windows. The company collapsed, and much of their IP was sold to Sun and AOL. This demonstrates that significant competition is impractical and potentially disasterous.

   Third, there is an assumption that patents will migrate from the industries that the Web (and the Internet as a whole) are converging with. This, so far, has been an invalid assumption. Indeed, successful convergence has occured where no patents are involved. (eg: Wireless phones that receive e-mail require no patents for WAP or SMTP.) Where patents have been a factor, as in the case of the MPAA's CSS, the protection of those patents has been expensive, both in financial terms and in public relations. Further, patents inhibit the take-up, as companies are loath to buy into technology until it is a proven success. MP3s are one of the few exceptions, but that standard is being replaced by Ogg Vorbis (unpatented), VQF (patented, I think) and MP4 (patented, but an open standard).

   Fourth, in an increasingly international environment, the validity of business patents (and, indeed, software patents) in the US may not be valid in all markets reached. RSA discovered this, with their public-key encryption algorithm, which could be patented in the US, but not in Europe, leading to popular alternative implementations in Europe. Eventually, RSA abandoned their patent early, quite probably to avoid a public-relations disaster turning into a complete fiasco.

   It should be borne in mind, by the W3C, that the Web is only the most popular form of accessing information on the Internet for now, because of the ready availability of it, and the existance of low-cost or free browsers. By raising the costs, there will be a pressure by the consumer to find other alternatives.

   Such alternatives do, in fact, exist. Some, such as Xanadu, are in early development. Others, such as Java/Swing, are starting to become significant in and of themselves. In short, the W3C has got one shot at getting this policy right. A mistake in such a volatile market can change the usage figures overnight. We've seen it before, and we'll see it again. I happen to like the Web, and would rather the W3C did not blunder on this.

   (The W3C should also bear in mind their own history, having issued draft standards before, which were ignored by implementors as unimplementable. If the W3C is seen as useless overhead, then it has no future. This goes back to the necessity of making the right decision, even if it means taking longer than some consortium members might wish. Nobody has ever died of caution, but many companies and consortiums have folded from being too decisive.)

Best of luck in coming to a workable solution, whether or not it's the one I would prefer




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