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Comment on the W3C Patent Policy Framework Working Draft

From: Stuart Ambler <scotch@idcomm.com>
Date: Sun, 7 Oct 2001 16:33:52 -0600
Message-ID: <023d01c14f80$840039a0$0000000a@p5166>
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 GMT

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