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

Patents and Standards: two competing philosophies

From: kevingmoore <kevingmoore@yahoo.com>
Date: Thu, 4 Oct 2001 22:50:38 -0500
To: <www-patentpolicy-comment@w3.org>
Message-ID: <000001c14d50$e60f7660$3175d73f@c311660a>
The proposed mechanism for allowing patented or otherwise licensed
technologies to be incorporated as W3C standards is fatally flawed. At
best it can be viewed as an attempt by the W3C to prevent future legal
issues caused by Royalty Free standards that conflict with patented
technology, a conflict that is generally revealed late into the
standardization process, thereby undoing much effort. At worst this
mechanism can be viewed as a cheap corporate takeover of the W3C. There
are several reasons why this mechanism will fail.

1) Standards now give a financial edge to one company over another -
Obviously the holder of the patent that underlies the standard stands to
make a good deal of money, even if the licensing arrangement is both
"Reasonable" and "Non Discriminatory". If two companies are pushing
competing patented technologies to solve the same problem, there will be
immense effort exerted by the companies to drag the standard down one
path or another. Instead of focused technical discussions,
standardization will resemble nothing so much as a bitter fight over the
estate of a deceased relative. This kind of legal wrangling could render
the W3C (by all measures a very competent body) impotent to advance
decent technical standards (licensed or not)

2) "Non Discriminatory" can never be accomplished - Some software
development operations (personal or ultra small businesses) cannot
charge any price for their software. From personal experience I know
that the cost of setting up electronic payment systems to charge a very
small amount for a product is an unworkable proposition. Even if future
standards were licensed for ridiculously small amounts, say $0.10 USD to
ship a browser compliant with some future new-and-improved-and-licensed
HTML standard, this would be a barrier to entry for some developers. If
I want to write such a browser and distribute it freely, I cannot. What
if it is quite popular and 100,000 people download my software. The mere
thought of having to pay $10,000 USD frightens me enough to forget about
the development. Having these same people pay the $0.10 USD
electronically is ridiculous when the transaction fees are greater than
the price! Licensing fees on standards compliant products only provide
another club for companies with vast capital (you know who you are), to
beat up on the companies with very little capital (you know who you are)

3) Patented Technology has it's own method of becoming a standard :
quality. In theory, patented material is of a sufficiently non-obvious
nature that it elegantly solves a problem in a way no one else has
thought of. Of course there are heinous exceptions to this, but the
concept is there. The patented method is published, and reviewed by the
development community. If it truly is the cat's meow, then companies
will jump to license it as a superior technology. I believe Real
Networks has seen their streaming audio software become a de facto
standard, and has licensed it for inclusion in other software. This is
how patents provide revenue for their holders.

These are the most significant reasons why even contemplating a
mechanism for standardizing licensed technology is a bad idea. The legal
infighting introduced to the standards process, the false nature of a
"Non Discriminatory license", and the existence of de facto standards on
patented technology, are all strong indicators that the W3C stands
poised to make a fatal mistake.

These are my comments on the issue
Kevin Moore
Received on Thursday, 4 October 2001 23:50:04 GMT

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