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Three substantial comments

From: <dr_lenz@ziplip.co.jp>
Date: Sun, 7 Oct 2001 11:41:45 +0900 (JST)
To: "www-patentpolicy-comment@w3.org" <www-patentpolicy-comment@w3.org>
Here are some substantial comments to help you with your policy decision.

Please let me mention that I am a German lawyer and professor of German Law and European Law based in Tokyo. I have three (3) comments.

1. Your policy is much too complicated

I understand that you have a majority of non-lawyers (including the Director) in the W3C Team. Please ask them if they understand what this draft wants to say. And try to come up with a policy everyone understands easily.

One reason for the complexity of your text is that you try to develop one policy for RAND and RF groups in one text. In contrast, you should first try to get the RF group policy right. Then, if you feel that the overwhelming opposition to any RAND policy here can safely be ignored, try to develop a different text dealing with that. 

2. Your policy is not aggressive enough 

Your RF policy should have two goals. One is getting info on relevant patents early. The other is stopping patent holders from impeding the implementation of your Recommendations.

To achieve both goals, the following simple policy would be enough.

--------------------- sample policy draft ---------------------------- (start)

Scrap the whole section 7 and replace with: "All members have to disclose all relevant own and third party patents they are aware of as soon as possible.

Scrap the whole section 8 and forget about licenses. Replace with:

All members have to promote the implementation of Recommendations and have to refrain from impeding their implementation in any way. Members especially have to refrain from using a patent to impede any implementation of a Recommendation or to make such implementation conditional on the payment of license fees.

If a member attempts to impede the implementation of a Recommendation, the Director may, at his sole discretion:

a) Ask the member to stop the impeding actions.
b) Suspend the impeding members memberships rights for a limited time.
c) Kick the impeding member out of W3C and treat the attack as a third-party-attack on a Recommendation (see below).

In case a third party attempts to impede the implementation of a Recommendation or to make it conditional on license fees, all members agree to view such an attack against a W3C Recommendation as a patent attack against their organization. All members will retaliate with measures appropriate and necessary to stop the third party attack.

If a third party attempts to impede the implementation of a Recommendation or make it conditional on license fees, the Director may, at his sole discretion:

a) Ask the third party to stop the impeding actions.
b) Post the name of the impeding third party on the "wall of shame" section of the W3C homepage.
c) Recommend to the Internet community to help invalidating the impeding patent by a collective prior art search.
d) Recommend to the Internet community to set up their networks in a way that blocks any traffic to and from the impeding third party's servers.

If the conflict with an impeding member or third party can not be resolved by the means above, the Director will:

a) Revoke the impeded Recommendation.
b) Set up a Working Group to find some way around the impeding patent and decide on a new Recommendation.

If the impeding patent is obviously without merit and only of nuisance value, the Director may, on his sole discretion, recommend to the members and the Internet community to file lawsuits against the impeding member or third party to recover all damages resulting from the blocking of the revoked Recommendation.

----------------------- sample policy draft -------------- (end)

In contrast to the above aggressive RF policy, your policy does not seem to fight strongly enough for your stated goal of affirming the Web community’s longstanding preference for RF standards. I think you could do better in trying to protect the openness of the Web.

3. Procedure

You seem to think that the W3C Process Document governs this policy change.

This is wrong.

The only way the Membership Agreement can be changed is by a writing signed by MIT, INRIA, Keio and all members, see Nr. 17 of the Membership Agreement.

The Process Document is an exception provided in the Appendix 1 for the proposal for standards, in number 7. Adopting a new IP policy, and changing number 7 of the Membership Agreement in the process, is not proposing a standard, so it can not be governed by the W3C Process Document.

Using the procedure for discussing standards to discuss this policy change alone is a fatal flaw assuring that anything you might decide in that way is without any legal effect. You can not change the Membership Agreement only by following the Process Document.

At the very least, this needs to follow number 9 of the Process Document. That means that the Advisory Board needs to be the sponsoring Working Group, which in turn means that any draft on this question needs to be edited by the Director of W3C. That is not what happened here.

So all work on the August 16 draft has been wasted. This can not possibly be adapted in this procedure. You need to start over from zero. Considering the overwhelming firestorm of criticism your draft has drawn that might actually be fortunate.

You can not deal with this kind of question, which might easily fork the Web, as if it were just another standard. This is much too important.

Dr. K. L e n z 
Professor (German Law and European Law)
University Aoyama Gakuin, Tokyo
Received on Saturday, 6 October 2001 22:41:27 UTC

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