Formal Comment on W3C Patent Policy Framework, Working Draft 16

      Satchell Evaluations
      PO Box 6900
      Incline Village, NV  89450-6900
      (775) 832-7157

      October 2, 2001

World Wide Web Consortium
Massachusetts Institute of Technology
Laboratory for Computer Science
200 Technology Square
Cambridge, MA 02139
Attn:  W3C Patent Policy Working Group

This Comment is in response to your call for public
comments on "W3C Patent Policy Framework, W3C Working
Draft 16 of August 2001", the deadline for public
comment having been extended to October 11, 2001 from
the original comment close date of September 30, 2001.

First, let me introduce myself.  My name is Stephen
Satchell, and I've been a professional practitioner of
Computer Science since 1971.  I have been an observer
of several industry standards committees, and served
for ten years in the Telecommunications Industry
Association Technical Committee TR-30, a recognized
ANSI Standards provider, as a regular contributor and
for many of those years as a voting member.  I was the
editor for TIA 3800, the modem testing procedures
standard, for much of its development as well as one
of the first implementors of the requirements.  I have
also been a member of the SPEC Consortium as an
independent tester, on behalf of MacUser magazine.

TIA performs its work under the auspices of ANSI, as
does the IETF.  I was unable to find anywhere on the
W3C Web site that the Consortium operates as an ANSI
Standards Provider, but I notice that your rules of
operation conform to those rules required of ANSI
Standards Providers.  I therefore make the assumption
that you have adopted the ANSI requirements for
Standards Providers regarding the prohibition of
discussion of non-technical topics in Standards-making
efforts, and so I refrain from violating that
requirement in this Comment.

Much of my work over the past decade has been done on
behalf of magazines.  As a byproduct of that work, I
was one of the founding members of the Internet Press
Guild, an organization formed to provide an
information resource for reporters and editors who
either don't regularly cover the Internet or who are
just starting out covering the Internet.  Please
inform your press contact that I would appreciate
seeing press releases from W3C so that I may pass them
on to the IPG and thus to over 100 writers and
editors.  I mention this because I saw nothing until
October 2, 2001 about this proposal being out for
public comment.  (I don't normally cover W3C myself,
but our members that do have been strangely quiet
about the public comment request for this draft -
unusual.)

I respond formally to your Request for Comment, so I
will be sending a paper copy to your office of record
as well as posting an electronic copy to your
discussion list.  My Comments will initially be
restricted to the normative portions of the Draft.  I
will touch on issues raised by the informative
portions at the end of this paper.

NORMATIVE COMMENTS

COMMENT 1:  Section 4, subpart (e):

I agree that the definition of RAND reflects common
practice in manufacturing standards organizations, but
does not take into account the fact that in the World
Wide Web universe there are many implementors who do
not sell their wares in any way.  Because they do not
sell their wares, they do not have the money to obtain
patents, participate in Standards forums, or litigate
any patent infringement claims that may arise from
their use of W3C standards.  Or pay royalties.
Or pay for audits.

I would strongly recommend that list item 5, which
reads "5.  may be conditioned on payment of
reasonable, non-discriminatory royalties or fees;" be
DELETED and REPLACED BY "5.  may be conditioned on
payment of reasonable, non-discriminatory royalties or
fees based on net or gross revenue earned by the first
sale or first license of software products
incorporating the Essential Claims in implementing the
Recommendation;".

I would strongly recommend that a new list item be
ADDED, which reads "7.  Licensor agrees to avoid
engaging in litigation in which there is no first sale
or first license of software products in exchange for
money."

COMMENT 2:  Section 4 subpart (e):

As a separate issue, I would like your committee to
consider any entity requiring royalties or fees be
required to pay "reverse" royalties and fees to
implementors who do not derive any revenue from their
software.  My rationale for making this suggestion is
that those revenue-zero implementors serve to foster
the acceptance and increase deployment of standards
which they implement, and so form a type of
"advertising" for the intellectual property.  By
requiring intellectual property holders to pay for the
increased marketing of their IPR, the intellectual
property holder compensates those who help them earn
money.

This situation has no parallel in the manufacturing
industry standardization world because manufacturers
rarely "give away" their product; giveaway is common
practice in the World Wide Web environment, and is
therefore an issue distinctive in the WWW world.

Astonishingly, perhaps, there is precedent for this in
the telecommunications world.  I point to the
development of the ZMODEM protocol and zero-revenue
software implementations of ZMODEM, development of
which were funded by TELNET.  In other areas of
computing, companies have paid others to embed the use
of intellectual property in to product to promote and
to market the deployment of a proposed standard so
that there would come to be a "critical mass" of
implementation of a proposed standard.

COMMENT 3:  Section 5.1

Part of the decision-making process must be the
documentation of the decision made and the rationale
behind the decision.

I recommend that a new activity be INSERTED between
steps 1 and 2, that reads "1.5  Description of the
decision on the proposed licensing mode and rationale,
including the alternatives considered and the reasons
the alternative were rejected, be developed and
included with the Activity Proposal."

Elsewhere, there needs to be a requirement that the
rationale either become part of the Recommendation or
be released as an associated Recommendation, similar
to the way the rationale for ADA was published by ANSI
as a separate document.

COMMENT 4:  Section 6.1

It strikes me as strange that a representative of the
holder of the patent is not part of the PAG
membership, perhaps in a non-voting role.  Was this an
oversight?

COMMENT 5:  Section 8

To all references to RAND in the second descriptive
paragraph, CHANGE to read "RF preferably, or at least
on RAND".

To the reference in the third descriptive paragraph to
"reasonable, non-discriminatory terms" CHANGE to read
"royalty-free preferably, or at least on reasonable,
non-discriminatory terms".

COMMENT 6:  Section 8.1

In both paragraphs, I strongly recommend changing all
references to RAND to RF.  Royalty-free licenses need
to be the norm in W3C Recommendations to allow for the
broadest deployment of the Recommendations.

This change ensures that license terms are known at
the time any technical decision is made, and that all
Essential Claims are included in their proper place in
the resulting Recommendation.  Making RAND the default
increases the chance of surprises to implementors -
perhaps an expensive surprise.

RAND is covered by disclosure, so the IPR holder
has recourse through the disclosure process.  My
change puts teeth into the disclosure requirement.

INFORMATIVE COMMENTS

COMMENT 7:  Section 11, FAQ question/answer 1-4

I would like to applaud the efforts of this group of
people to approach a very delicate and touchy subject.
It's clear from the contents of Draft 16 that much
thought has gone into the problem, and how to work
with the problem of intellectual property inclusion in
the Standards-making process.  I applaud all of you.

That said, I'm concerned that every single one of the
writers of this Draft come from W3C and the commercial
world.  Are there not members of W3C from the not-for-
profit world with IPR expertise?  Were there invitees
from not-for-profits such as the Apache Software
Foundation who could participate?

It's probably a little late to fix this problem, but I
strongly suggest the W3C consider expanding its Patent
Policy WG to include non-commercial entities,
particularly people who have contributed software on a
public-domain or public-license basis to the World
Wide Web.

CONCLUSION:

After having gone through the IPR disclosure process
with regard to modem patents in my work with TIA TR-
30, I understand all too well the difficulty you face,
particularly given the community from which the World
Wide Web was born and nurtured.  It's a situation that
needs to be faced, and faced with care.

My proposals for change in the normative part uphold
the statement your committee makes in the informative
part that RAND is the inferior solution to RF.

The declaration recognizes that the major contributors
to the success of the World Wide Web have not been
exclusively commercial software houses, but graduate
students, advanced amateurs, professionals on a
"busman's holiday," and commercial concerns needing a
capability for themselves and making the capability
available to others without charge.

This last class of contributor has a very long
history, in existence even longer than many of the
companies that formed your committee.  I speak in
particular of the DEC Users Group and it's children,
the Users Groups around the world, who trade software
freely and without royalty.  Before that, IBM
mainframe users - many of them commercial concerns -
exchanged tapes of useful utilities and tips.
This shouldn't be news -- the practice dates back
to the year 1967.

(In the Burroughs world, it dates back even further,
but how far I don't know; documentation is hard to
find.)

Respectfully submitted this 2nd day of October, 2001
Stephen Satchell.

Received on Friday, 5 October 2001 17:39:05 UTC