Additional comments to W3C Patent Policy Framework Working Draft

I am happy that the W3C has agreed to extend the review 
period for the Patent Policy Draft in response to the many 
comments (including mine) that they received. I have tried to 
follow the W3C recommendations for comments as outlined in 
the “Response to Public Comments on the W3C Patent Policy 
Framework Working Draft” 
(http://www.w3.org/2001/10/patent-response).

In response to the W3C’s questions regarding the elements of 
the proposal that I object to:
1) I have no objections to a requirement for disclosure 
provisions, although I believe that the disclosure requirements 
need to be expanded and strengthened (as outlined in detail 
below).
2) I have no objections to a procedure for launching new 
standards development activities as Royalty-Free Licensing 
Mode activities.
3) I have strong objections to the outlined procedure for 
launching new standards development activities as Reasonable 
and Non-Discriminatory (RAND) Licensing Mode activities.

In the interest of brevity and readability, I will refer Working 
Groups with charters that specify that they will operate in a 
RAND licensing mode as “RAND Working Groups” and those 
whose charters specify they will operate in a Royalty-Free (RF) 
licensing mode as “RF Working Groups.”

In general, my objection to the proposed Patent Policy is that, 
despite a few comments on past importance of open technical 
standards to the Web’s development in the informative 
Overview and Background, the Policy takes no position on the 
relative merits of creating a new Working Group as a RAND 
Working Group or as a RF Working Group and treats these 
two alternatives on an equal procedural footing.

My initial comments, and those submitted by many others, have 
enumerated, in detail, the reasons that standards with RF 
licensing are to be very strongly preferred to standards with 
RAND licensing. A summary of these reasons would include:

1) Open source implementations of standards that require 
payment of a licensing fee will be impossible since there is no 
revenue stream to pay the licensing fee from. This will greatly 
slow the development of software implementing standards and 
will also greatly decrease the chance that standards will be 
implemented in innovative software or systems.
2) Adoption of standards that require payment of a licensing fee 
will create very strong pressure for the development of a rival 
RF standard outside the W3C, which because of the presence 
of the large open-source developer community, will likely have 
substantial developer support. The resulting rival “standards” will 
result in slower adoption of new technologies (at best) or a 
permanent split between incompatible standards. Over the long 
run, existence of competing standards will undermine the role 
and relevance of the W3C as the organization that sets web 
standards.
3) There will be a conflict of interest for any W3C member who 
has a patent on a technology that is to be included in a RAND 
licensed standard, since that member has an obvious financial 
incentive to push their technology (in order to reap the license 
fees) rather than the best technology.
4) If a company controls the patents for technology included in a 
RAND licensed standard, they will have undue leverage over the 
evolution of the standard (since they can always threaten to alter 
the licensing scheme), and may be able to eventually dictate the 
evolution of the standard regardless of what the rest of the W3C 
members think is best.
5) The requirement to place license fees to use standards places 
an undue burden on people or countries with limited economic 
resources, violating  the W3C commitment to the widest 
possible access to the web.

I would prefer that the W3C Patent Policy Framework simply 
state that all Working Groups must be operate in RF licensing 
mode. If the W3C feels strongly that there must be some 
mechanism for creating Working Groups that operate in RAND 
licensing mode, I have outlined below what I would consider the 
minimum acceptable safeguards for permitting this dangerous 
possiblity.

The W3C Patent Policy Framework must include statements 
that the creation of RF Working Groups is strongly preferred 
and that RF should be considered the standard, or default, 
licensing mode. 

 I find it extremely unlikely that a patent situation would exist that 
would preclude the development of a standard under an RF 
licensing mode. If those proposing a new Working Group for 
some reason feel that development of standard under an RF 
licensing mode is not possible, I suggest the following additional 
procedural steps before allowing the group to be created as a 
RAND Working Group:

1) The W3C should approach all companies with Essential 
Claims and ask them in a public and formal manner to agree to 
license those claims on an RF basis when they are used for the 
purposes of implementing the standard, and to make this license 
permanent and not subject to future revocation or additional 
conditions. 

2) If one or more companies refuse, the W3C should investigate 
the legal basis for the claim that elements of the proposed 
standard would infringe on the Essential Claims in the patents, 
and whether the underlying patent is valid. If it was clear that 
there was no infringement or that the patent was not likely to be 
deemed valid, the W3C should bring the appropriate legal action 
to overturn the patent or obtain a ruling as to its scope.

3) Should this fail or not be possible, the W3C should diligently 
investigate alternative ways of formulating the standard so that 
no patents are involved. Give the nearly infinite flexibility of 
digital information representation, it is very hard for me to see 
how this step could ever fail. As part of this step, the W3C 
should publicly post a description of the problem, including the 
details of how the patents prevent development of the proposed 
standard under an RF licensing mode, the relevant text of the 
patents, and the proposed activity of the Working Group. 
TheW3C should invite public comment over a period of at least 
30 days in order to allow people to propose alternative ways of 
approaching the standard that would not involve RAND 
licensing.

4) Only if at the end of this process there was no suitable 
alternative way of formulating the standard that would allow RF 
licensing, would the W3C allow the creation of a Working 
Group under a RAND licensing mode. As I have said before, it 
seems extremely unlikely that this will ever be necessary, but the 
proposed framework would provide a way that it could be done.

In summary, I hope that the W3C either confirms that all 
standards be developed in a RF licensing mode, or, if it feels it is 
absolutely necessary to have a procedure in place to allow for 
the creation of RAND licening mode Working Groups, it adopts 
the strong procedural safeguards that I have described above.

Sincerely,


Evelio Perez-Albuerne
evelio@ultradrive.com
http://www.ultradrive.com

Received on Tuesday, 9 October 2001 20:44:20 UTC