- From: Stuart Ambler <scotch@idcomm.com>
- Date: Sun, 7 Oct 2001 16:33:52 -0600
- To: <www-patentpolicy-comment@w3.org>
Gentlepeople: Thank you for the opportunity for comment. I disagree that patented technology is appropriate for W3C standards (I use the word "standards" to include Recommendations and other official documents). It is a wholly different matter to make standards that effectively force licensing agreements upon those using the standards, than to make the technical standards themselves. "Reasonable" is most certainly in the eye of the beholder. I certainly would not trust any W3C group to make decisions for me - as it would necessarily do, for innumerable individuals and many companies - about contracts that I would then effectively be forced to enter into, in order to earn a living in the fields W3C touches on. Therefore I disagree that provision should be made for RAND terms. Even RF terms could be unacceptable, for example if the licensees were required to register with the patent holder. There are many non-monetary terms that could be imposed that could be unacceptable. Auditing is an inherently intrustive procedure that should never be required. RF terms granting use in implementations of a particular standard, with no further requirements or restrictions, would seem acceptable. Therefore, I disagree with the RF v.s RAND dichotomy, since they both seem to assume the use of patented technology. First preference should be given to using Unpatented Technology, with additional provision for RF licenses only, and those in forms not restricting use other than to implementation of a particular standard. 1. Overview. Members should be less terribly concerned about "their own intellectual property portfolios"; there should be more concern with intellect and less with property. An interest in property is to be expected from large corporations, but is reprehensible from academic institutions, such as a well known school at which a degree candidate's web page referred to patent protection for a large corporation of the subject of his thesis research. The concept of property is natural for physical resources, that are necessarily limited, but is unnatural for ideas. In addition to this philosophical concern, in practice, software patents are granted on the flimsiest of grounds. The issuance of a patent may say more about the ability of a company to pay lawyers' fees, than about any real originality in the work, and it is questionable whether there is net social benefit from the practices encouraged by the use of the concept of chronological priority in awarding patents. Someone once suggested to me, about a software patent I was pursuing at the time, that it was a question of whether I wanted to make money by producing something, or by suing people. 2. Competition, per se, is not necessarily a force for innovation. Very often it produces a preoccupation of people's minds with what other people are doing, with the result of uniformity. Sometimes participants in competition suffer from a kind of tunnel-vision, in which they imagine that they are being innovative and different from the other people, but to disinterested observers, little is actually going on. Perhaps it is equally plausible that innovation occurs because of, or in spite of competition. 2.2. I certainly agree that disclosure is important. I disagree with the idea that patented technology is appropriate for W3C standards. 3. I disagree that patented technology is appropriate for W3C standards, hence commitment to RAND terms is inappropriate, since it implicitly accepts the use of patented technology. 4. (e) RAND terms are not appropriate. Furthermore, (4(e)6), "reasonable, customary" is again in the eye of the beholder. What is customary, in this litigious age, may not be at all reasonable. W3C is not competent, nor has it the right, to judge what people will find reasonable in contracts. 4. (f) RF terms should be contingent only upon use in implementation of the given standard. 5. Charters should be available only in the forms of Unpatented Technology (could be abbreviated UT) and RF (Royalty Free, to include freedom from other requirements than restriction to implementation of a particular standard). 5.2 This section should be changed to refer to Unpatented Technology and RF only, not RAND. 6. This section should be changed to refer to Unpatented Technology and RF only, not RAND. 7. I agree. 8. and 8.1. RAND terms are not acceptable. RF, of the form mentioned here repeatedly, would be. Sincerely, Stuart Ambler
Received on Sunday, 7 October 2001 20:24:09 UTC