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Re: We must fork the SVG standard (was: SVGA 1.0 uses RAND ->DO NOT ! implement it, DO NOT ! use it)

From: chuck weinberger <chuckhw@pacbell.net>
Date: Sun, 07 Oct 2001 23:40:36 -0700
To: www-patentpolicy-comment@w3.org
Message-id: <001001c14fc4$23a53b20$6823c93f@officecomputer>
Chris Lilley wrote:

>Correct. There is neither proof nor disproof; instead there is information,
which developers must interpret as best >they can. Allow me to digress a
little into software patents in general.

>If software patents exist, it would be better if they were only waared for
astonishing clevernes, ingenuity and >originality. But they are not - the
bar for consideration of prior art and obviousness to someone skilled in the
field >is extrodinarily low. Plus, they are not written by engineers, but
writen an a deliberately vague and obscuring >legalese so that when it is
callened in court, there is easy 'cannon fodder' bogus claims that can be
given away and >agreed invalid to protect the core claims. This is legal
manouevering, not technology.

I'm not sure what your point is here.

You are correct that the US Patent and Trademark office has deliberately set
their patent review standards very low.  In doing so they have made the
conscious decision to leave it up to the courts to decide whether an issued
patent is valid.   This creates a huge advantage for large companies at the
expense of small developers as it costs millions of dollars to invalidate a
patent in the courts once it has been issued by the PTO.

You suggest that the developer must interpret the patent as best he can.
You also mention how patents are written in legal ease.  Obviously, a
developer should not feel confident that his interpretation of a patent is
correct.  You'll need to hire a patent attorney for any close calls.  Even
if a developer could spend the thousands of dollars it would take to have a
thorough legal opinion created as to the validity and scope of a particular
patent, there would always be huge uncertainties that go with that opinion,
not to mention the huge exposure of possibly having to spend millions of
dollars to have the issued patent invalidated.  At the same time, the
company holding the patent is going to be waving it in front of all of your
potential customers, driving them away with the fear of patent infringement.
This exact thing has happened for a decade with ITU standards in the modem
world.

>In addition, W3C producers specs and developers produce software
implementations of them. So it might be that >one reasonable way to
implement something is subject to a patent claim and another, equally
satisfactory way is >not.

When you talk about patents on standards you really have to make a
distinction.  There are patents that apply to a particular implementation of
a standard.  There are also patents that are *essential* to any
implementations of a standard.  Developers can work around the first type of
patent; they cannot work around the second type of patent.

>> This makes the SVG proposal suspect and unattractive to implementors

>Only because people have chosen to focus on it. Thats a public relations
issue, not a technical or legal one. The >same is true of any other
specification from anywhere else.

I'm really missing your point here.  The SVG proposal is currently subject
to RANDs and that means the developer community could very well be held
hostage by the patent holders.  In the early 1990's Motorola, Rockwell, US
Robotics and others were working on the ITU's V.34.  The ITU has a RAND
approach.  At one point during the committee meetings Moto. lobbied for its
proposal by telling several other committee members that it would license
its relevant patents for a one time fee.  Well, once the V.34 standard was
finalized Moto changed its tune and started demanding several dollars per
V.34 modem.  This action led to about 10 years of litigation.  So, clearly
any SVG proposal that has RANDS as opposed to all RFs is suspect.

>I agree that having those few licenses which are RAND be converted to RF
would make me feel better and would >make the developer community feel
better. It does not however offer a guaranteed of immunity - just increases
the >statistical likelihood. Exactly the same as any other specification frm
W3C or from anywhere else.

Very true.  You can never totally eliminate your legal exposure.  Still, an
RF approach is a big step forward.

Please see my posting "Advice from a Modem War Survivor" for additional
information on how the RAND approach has played out in the ITU.  I have also
included a proposal for making a RAND approach more developer friendly,
admittedly at the cost of additional administrative burden for the W3C.

Chuck Weinberger
Received on Monday, 8 October 2001 02:40:14 GMT

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