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

Proposal for modification to Member Patent Licensing Commitments.

From: David Woodhouse <dwmw2@infradead.org>
Date: Fri, 05 Oct 2001 18:23:05 +0100
To: www-patentpolicy-comment@w3.org
Message-ID: <8299.1002302585@redhat.com>
The current draft of the Patent Policy Framework does not adequately address
the potentially serious problem of Essential Claims which come to light only
after the Recommendation has been finalised and implemented.

Under the currently proposed policy, it appears that there is a 
loophole by which a Recommendation which was intended by all parties 
to be RF may be retroactively forced into RAND licensing mode by a rogue 
third party Member of the W3C.

It is feasible that a failure to make early disclosure of Essential Claims
may cause a Recommendation to proceed using technology which is later
discovered to be encumbered by patents, whereas an earlier disclosure would
have caused the Working Group to develop unencumbered alternatives.

I quote from the current Working Draft of the Patent Policy Framework (6):

	When a Working Group becomes aware that it may have incorporated
	technology in its specification that is contrary to the licensing
	mode defined in the Working Group charter, it must launch an ad 
	hoc Patent Advisory Group (PAG). A PAG must be launched in the 
	event Essential Claims become known which are not licensable 
	according to the licensing mode of the Working Group.

	<...>
	
	After appropriate consultation, the PAG may conclude either:

	   1. the initial licensing conflict has been resolved in order to
	      be able to produce a specification that meets the licensing
	      mode set out in the Working Group charter; or
	   2. the conflict cannot be resolved so the Working Group should 
	      be terminated and, at the suggestion of the PAG, re-chartered.

The two possible conclusions listed above do not adequately cover the
possibility that an Essential Claim becomes known some time _after_ the
advancement of the specification to Recommendation.

In this situation, it is too late to reasonably consider the latter of the
two listed alternatives. Therefore, it should be ensured by the PPF that the
former conclusion can be reached.

To this end, I propose that throughout Section 8, "Member Patent Licensing
Commitments", the phrases 'on RAND terms' and 'under a RAND License(sic)'
should be changed to indicate licensing terms which are in accordance with
the licensing mode of the Working Group that developed the proposal.

It should also be made explicit that Members may only 'opt-out' of licensing
Essential Claims which are specifically declared at the appropriate time.

That is; Members who have 'opt-ed out' of licensing specific Essential
Claims declared at the time of the Recommendation shall still be required to
license any other Claims which are discovered later, under terms in
accordance with the licensing mode of the original Working Group.

--
dwmw2
Received on Friday, 5 October 2001 13:23:13 GMT

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