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Part II: A Concrete Alternative

From: Steve Waldman <swaldman@mchange.com>
Date: Fri, 05 Oct 2001 21:47:41 +0200
Message-ID: <3BBE0E5D.4020203@mchange.com>
To: www-patentpolicy-comment@w3.org
The following is a proposed alternative to the W3C PPF Working Draft 
that attempts to meet the clarity and excellence goals of the current 
proposal without the sacrifice of openness that "RAND" licensing would 
entail. It accomplishes this by taking a carrot-and-stick approach to 
encouarging patent holders to license their technology on a royalty-free 
basis:

1) Retain the disclosure requirements of the current draft proposal,
    basically as they are.

2) Define research into the patent status of essential technologies
    as one of a W3C Working Group's duties, in order to discover
    potential "submarine patents" held by entities other than members
    or contributors.

3) Throughout each standards process, identify all essential patents.
    At first, presume the validity and enforceability of all patents
    and interpret the claims of each patent as broadly as possible.

4) For each required patent, ask the patent-holder whether it would
    be willing to license the patent on a royalty-free basis to any
    and all for the purpose of implementing the W3C standard. Acknowledge
    patent-holders who agree to so license their technology
    prominently in a new, separate section of all W3C standards.
    Request, but don't require, that implementers also prominently
    acknowledge the licensor's technology. Do not provide the licensor
    with any sort of "opt-out" clause.

5) If one or more patent-holders refuse to license the technology on
    a royalty-free basis, convene a Patent Advisory Group whose purpose,
    unlike in the current proposal, _is_ to assess the essentiality of
    the patents at issue and to develop legal opinions about their
    validity and enforceability. The PAG may conduct whatever researches
    it deems necessary, including without limitation, making widespread
    calls for prior art. At this point in the process, the PAG will
    interpret patent claims as narrowly as it believes can be legally
    sustained.

6) If the PAG determines that, in its opinion, any essential patents
    for which royalty-free licensing has not been obtained are not
    valid or enforceable, the W3C will publish PAG's reasoning,
    carefully disclaiming all liability. (W3C should encourage
    independent analysis by potential implementers, reminding readers
    that the PAG's opinion is not a court's, and that if it is held
    to be erroneous implementors may still be subject to liability for
    infringement.) At this point, the standards process should continue
    without further regard or acknowledgement of the unnecessary or
    putatively invalid patent.

7) If the PAG determines that, in its opinion, there are patents for
    which royalty-free licensing cannot be obtained that are both
    essential and valid, the technology at issue must be deemed
    proprietary and therefore not subject to W3C standardization. The
    standards process then halts, and W3C issues a press release
    explaining why the process has come to an unsuccessful end.

8) Should a "submarine patent" surface during the lifetime of a W3C
    standard, it should be considered a "required patent" in step 4
    above, and the process should start from there. The patent-holder
    may opt to license the patent on a royalty-free basis, in exchange
    for acknowledgement and an acceptance by W3C of the broadly-construed
    patent's validity on face. If they are unwilling, they may face a
    critical review. If a PAG determines that the submarine patent is
    unnecessory or invalid, the W3C will simply publish its reasoning
    and ignore the patent-holder. If it determines that the newly-
    surfaced patent is essential and valid, it will formally rescind
    the standard, issuing a press release explaining and advising,
    current implementors and users of their potential liability for
    infringement.

           respectfully,
                Steve Waldman
Received on Friday, 5 October 2001 14:46:55 GMT

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