- From: Evelio Perez-Albuerne <thoth256@us.net>
- Date: Tue, 9 Oct 2001 20:43:36 -0400
- To: www-patentpolicy-comment@w3.org
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