- From: Joycelyn Maddux <madpete@earthlink.net>
- Date: Wed, 10 Oct 2001 12:24:57 -0500
- To: www-patentpolicy-comment@w3.org
World Wide Web Consortium Patent Policy Working Group www-patentpolicy-comment@w3.org Dear W3C Patent Policy Working Group: For the following reasons, I oppose the recent Patent Policy Framework draft, which could allow W3C members to charge royalty fees for technologies included in web standards. In particular, I support the current Royalty-Free ("RF") Licensing Mode stated in Sections 4 and 5. I partly support Section 7 DISCLOSURE OBLIGATIONS but feel that it should include additional disclosure obligations. However, I oppose the Reasonable and Non-Discriminatory ("RAND") Licensing Mode stated in Sections 4 and 5. I also oppose the default licensing mode as RAND Licensing as stated in Section 8 MEMBER PATENT LICENSING COMMITMENTS. I feel that the recent Patent Policy Framework draft should be rewritten to confirm that RF Licensing is the official policy of W3C, remove all reference to RAND Licensing, and include additional Disclosure Obligations for patentees in Section 7. 1. RF Licensing is working well right now. RF licensing is the status quo. As the Patent Policy Working Group ("PPWG") states in Section [4-4] of the Patent Policy FAQ, NOTE: The W3C is not presently aware of any non-free patent that is essential to any existing W3C recommendation. Accordingly, there is an established history of RF. In addition, the PPWG does not list any examples of Non-RF Licensing in the Patent Policy Framework or FAQ. Since the PPWG states the RF Licensing is established and does not list any examples of Non-RF Licensing, RF Licensing is by implication the status quo for the W3C. RF licensing has generated no problems so far. In Section 2 of the draft Patent Policy Framework ("PPF") the PPWG states Web technology has developed over the last decade through an unprecedented burst of entrepreneurial energy and global coooperation. As stated above, the W3C's current patent policy is RF Licensing. Since web technology has developed quite well over the last decade, the W3C's current patent policy must be working well. Since the W3C's current patent policy is RF Licensing, RF Licensing must be working well. Since RF Licensing is working well, the W3C should not change its patent policy. RF Licensing has not affected the PC industry. Intel Corporation helped develop the PCI standard and developed the AGP and licensed them royalty free. These 2 standards are now found in every PC being offered today. Around the same time PCI was introduced, IBM introduced the Micro-Channel Architecture ("MCA") but only offered it on a closed proprietary license. Today, no PC of which I am aware uses MCA. Intel is not claiming that it needs to shift PC Architecture Standards to RAND Licensing to continue development of PC Architecture Standards. Since Intel is not claiming a need to shift PC Architecture Standards to RAND Licensing to continue development of PC Architecture Standards, the W3C similarly need not shift its patent policy to RAND Licensing to continue development of Web Standards. Since the W3C does not need to shift its patent policy to RAND Licensing to continue development of Web Standards, the W3C should maintain its policy of RF Licensing. Another example of RF Licensing not hurting the PC industry is memory standards. Rambus is currently offering a proprietary standard, whereas most memory manufacturers are choosing the open DDR-DRAM standard. The DDR-DRAM standard appears to be dominant. Since the open DDR-DRAM standard appears to be dominant, open standard RF Licensing would appear to be superior to proprietary RAND Licensing. RF Licensing meets the some of the goals of the PPWG and PPF. In their answer to question 1 of the RESPONSE TO PUBLIC COMMENTS ON THE W3C PATENT POLICY FRAMEWORK WORKING DRAFT ("RESPONSE"), the authors state that one of the goals of the new policy is to avoid Fear, Uncertainty, and Doubt ("FUD"). If FUD hampers the development of web technology, then an RF Licensing Policy that generated FUD would have hampered development of web technology. As stated above, the W3C's current RF Licensing Patent Policy has worked well for the past decade. Since the W3C's current Patent Policy has worked well for the past decade, it is already avoiding FUD. Since the W3C's current RF Licensing Patent Policy is already avoiding FUD, the W3C's current RF Licensing Patent Policy is already meeting some of the goals of the PPWG and PPF. Since the W3C's current RF Licensing Patent Policy is already meeting some of the goals of the PPWG and PPF, the W3C should not change it. Since the W3C's current Patent Policy is RF Licensing and it is working well and meeting the goals of the PPWG and PPF, the W3C Patent Policy Working Group should not change the current RF licensing policy. Further, since the W3C's current Patent Policy is RF Licensing and it is working well and meeting the goals of the PPWG and PPF, I support Sections 4 and 5 of the PPF draft that implement RF Licensing Policy and Procedures. 2. The Disclosure Obligations of Section 7 require modification I support Section 7 of the PPF draft to the extent that the PPF requires W3C Members to disclose patents affecting a Working Group's ("WG") proposals or standards or protocols or recommendations or other work. I agree that requiring Members to disclose patents relevant to the WG will reduce FUD. However, I feel that the current draft PPF does not require enough disclosure to prevent "submarine" patents, such as the recent Rambus SDRAM patents. For the following reasons, I feel that the PPF should be modified to include these additional requirements: (i) Patentees should be required to disclose claims relevant to the WG(Sub-Section 7.1 (1.)) (ii) Patentees should be required to search their Patent Portfolios as part of their disclosure obligation (Sub-Section 7.2) (iii) Patentees should be required to disclose their Licensing Mode at the time of disclosure of essential patent claims (Sub-Section 7.3) (iv) W3C Members and Invited Experts should be prohibited from filing patents applications on standards, protocols, recommendations, or other work of any WG that is under consideration (Section 8) . (i) Patentees should be required to disclose claims relevant to the WG (Sub-Section 7.1 (1.)) By allowing Patentees to avoid disclosing patent claims relevant to the WG, the W3C is giving these Patentees an opportunity to negotiate a better license for their patents than if they were required to disclose relevant patent claims. By giving these Patentees an opportunity to negotiate a better license for their patents than if they were required to disclose relevant patent claims, the W3C is increasing the FUD in a WG's proceedings. By increasing the FUD in a WG's proceedings, the W3C is defeating the stated purpose of the PPF; namely, to reduce FUD in the WGs future work (see Goal 2 in answer to Question 1 of RESPONSE). Since allowing Patentees to avoid disclosing patent claims relevant to the WG defeats the stated purpose of the PPF, Sub-Section 7.1 should be rewritten to require Patentees to disclose claims relevant to the WG. (ii) Patentees should be required to search their Patent Portfolios as part of their disclosure obligation (Sub-Section 7.2) Patentees should be required to search their Patent Portfolios as part of their disclosure obligation. Two members of the PPWG, IBM and Microsoft, happen to own the 2 largest portfolios of software patents in the United States, and probably the world (see SOFTWARE PATENTS by Gregory A. Stobbs, Second Edition, July 15, 2000, Aspen Publishers, Inc. ISBN: 0735514992. If I recall correctly, Chapters 11 and 12 contain this information.). Since the owners of the 2 largest portfolios of software patents happen to be W3C Members and PPWG Members, I they have an additional obligation in making patent disclosures. Since they have an additional obligation in making patent disclosures, they should be required to search their patent portfolios as part of their disclosure obligation. Since IBM and Microsoft are being required to search their patent portfolios, other Members should be required to search their patent portfolios as well. Since the Members should be required to search their patent portfolios as part of their disclosure obligations, Sub-Section 7.2 should be rewritten to require Members to search their patent portfolios as part of their disclosure requirement. (iii) Patentees should be required to disclose their Licensing Mode at the time of disclosure of essential patent claims (Sub-Section 7.3) Patentees should be required to disclose their Licensing Mode at the time of disclosure of essential patent claims. Sub-Section 7.1 does not require Members to disclose licensing terms for essential patent claims at the time of disclosure. By not requiring Members to disclose their Licensing Mode for essential claims at the time of disclosure, the W3C allows these Patentees manipulate the WG drafting process by threatening not to license the essential claims under a particular license unless the Patentee obtains favorable treatment in the recommendation. By allowing these Patentees manipulate the WG drafting process, the W3C is increasing the FUD in a WG's proceedings. By increasing the FUD in a WG's proceedings, the W3C is defeating the stated purpose of the PPF; namely, to reduce FUD in the WGs future work (see Goal 2 in answer to Question 1 of RESPONSE). Since allowing Patentees to avoid disclosing their Licensing Mode for essential claims at the time of disclosure defeats the stated purpose of the PPF, Sub-Section 7.1 of the PPF should be rewritten to require Patentees to disclose their Licensing Mode at the time of disclosure. (iv) W3C Members and Invited Experts should be prohibited from filing patents applications on standards, protocols, recommendations, or other work of any WG that is under consideration (Section 8) W3C Members and Invited Experts should be prohibited from filing patents applications on standards, protocols, recommendations, or other work of any WG that is under consideration. For example, Rambus, Inc., filed patents on the SDRAM standard while JEDEC was debating the SDRAM standard (see the following webpages for additional information: http://news.cnet.com/news/0-1003-202-4773837.html http://www.siliconstrategies.com/printableArticle?doc_id=OEG20001115S0062 wysiwyg://41/http://slashdot.org/article.pl?sid=00/08/29/172222&mode=thread http://www.electronicnews.com/news/6333-47NewsDetail.asp wysiwyg://61/http://slashdot.org/article.pl?sid=01/05/09/1955204&mode=thread ). These patents were modified to cover all aspects of the SDRAM standard as they were debated. Rambus is now suing 3 memory manufacturers, the U.S. corporation MICRON, the German corporation INFINEON, and the Korean corporation HYNIX (I believe). Rambus has already extracted licensing fees from most of the Japanese SDRAM memory manufacturers. W3C's PPF should be drafted to prevent this chain of events from recurring. To prevent a W3C Member from duplicating Rambus' acts, the PPF should prohibit W3C Members and affiliates from filing patent applications on, or from amending currently filed patent applications to include any part of, recommendations being considered. By rewriting Section 8 of the PPF to prohibit W3C Members and affiliates from filing patent applications on, or from amending currently filed patent applications to include any part of, recommendations being considered, the W3C will prevent "submarine" patents like the Rambus SDRAM patents from encumbering Recommendations. Thus, to prevent "submarine" patents like the Rambus SDRAM patents from encumbering Recommendations, the W3C should rewrite Section 8 of the PPF to prohibit Members and affiliates and Invited Experts from filing patent applications on, or from amending currently filed patent applications to include any part of, recommendations being considered. 3. I oppose RAND Licensing as listed in Sections 4 and 5 I oppose RAND Licensing as listed in Sections 4 and 5 of the PPF. I oppose RAND Licensing for the following reasons: (i) RAND Licensing defeats the goals of the PPF (ii) RAND Licensing grants Patentees greater rights than they possess . (i) RAND Licensing defeats the goals of the PPF First, Section 8 of the PPF explicitly contradicts the W3C's preference for RF Licensing. Section 8 states As a condition of Membership in W3C, each Member agrees to license all Essential Claims needed to implement W3C Recommendations on RAND terms... Since Section 8 obligates Members to license on RAND, not RF, terms, Section 8 contradicts Section 1's preference for RF Licensing. Since Section 8 of the PPF obligates Members to license their patents on RAND, not RF, terms, RAND Licesning defeats the W3C's preference for RF Licensing. Since Section 8 defeats the W3C's preference for RF Licensing, it should be rewritten to specify RF Licensing as the default Licensing Mode. RAND Licensing defeats the W3C's preference for RF Licensing. Section 1 of the PPF states the W3C's preference for a RF Licensing Patent Policy. Corporations comprising W3C Members are predominantly for-profit corporations. For-profit corporations are created to make money. For-profit corporations make money by selling or licensing products and services. Stockholders of for-profit corporations pressure management of for-profit corporations to constantly increase revenues. Since stockholders of for-profit corporations pressure management of for-profit corporations to constantly increase revenue, management of for-profit corporations always prefer licensing which generates revenue for their corporation to licensing which does not generate revenue for their corporation. RAND Licensing will generate revenue for Member corporations. RF Licensing will not generate revenue for Member corporations. Since RAND Licensing generates revenue for corporations while RF Licensing does not, managment of Member corporations will always prefer RAND Licensing to RF Licensing. Since Member corporations will always prefer RAND Licensing to RF Licensing, RAND Licensing will defeat the W3C's preference for RF Licensing. Further, the current economic recession will encourage Member corporations to choose RAND Licensing over RF Licensing. The United States economy, along with the economies of Europe and most industrialized nations is currently in recession. As a result of this economic recession, Member corporations are having difficulty increasing revenues to please their stockholders. Since the economies of most nations are in recession, Member corporations are under increasing pressure from stockholders to find new sources of revenue. Since management of Member corporations are under increasing pressure from stockholders to find new sources of revenue, Member corporations have an additional incentive to prefer RAND Licensing to RF Licensing. Since Member corporations now have an additional incentive to prefer RAND Licensing to RF Licensing, they will choose RAND Licensing over RF Licensing. RAND Licensing defeats the W3C's goal of avoiding FUD. In their RESPONSE, the authors state that one of the goals of the new policy is to avoid FUD. However, Section 8 states that Member corporations are not obligated to disclose the licensing mode of their submission until their submission is accepted as a Contribution. Since Members are not required to disclose the licensing mode of their submission until their submission is accepted as a Contribution, the WG cannot be certain that their draft Recommendation will meet the licensing requirements of their WG Charter. Since the WG cannot be certain that their draft Recommendation will meet the licensing requirements of their WG Charter, RAND Licensing renders the WG's work uncertain. Since RAND Licensing renders the WG's work uncertain, RAND Licensing increases FUD. Since RAND Licensing increases FUD, RAND Licensing defeats the new PPF's goal of avoiding FUD. Since RAND Licensing defeats the W3C's goals of preferring RF Licensing and of avoiding FUD, I oppose RAND Licensing. (ii) RAND Licensing grants Patentees greater rights than they possess First, I object to many statements in Section 2 of the draft PPF, especially Sub-Section 2.1. Sub-Section 2.1 states: The second decade of the Web has already demonstrated that patents will be a factor in the ongoing development of the World Wide Web infrastructure. By omission, the authors imply that patents were not a factor in the ongoing development of the World Wide Web infrastructure during the first decade. However, patents did affect the Web during the first decade of its development. Around 1995, and again in 2000, Unisys Corporation enforced its patent on the LZW compression algorithm ("LZW Patent"). The LZW Patent is the basis of the GIF image file format. The first time Unisys enforced its patent, they forced CompuServe (I believe) to pay a lump sum royalty. The second time Unisys enforced its patent (in 2000), many persons and companies stopped using GIF files and switched to the RF Licensed PNG image file format. The fact the Unisys had a patent which they enforced during the first decade of the Web's development indicates that patents already affect the Web's development. Secondly, the fact that people and companies switched to an alternative file format (PNG) indicates that the W3C can work successfully work around patents. Since patents have already affected the Web during its first decade of development and the Web has successfully worked around such patents, the PPWG's statement is not correct. Since the PPWG's statement is not correct, the PPF should be rewritten to delete this statement. Furthermore, since patents have already affected the Web during its first decade of development and the Web has successfully worked around such patents, the W3C can continue to successfully work around patents during the second decade of the Web's development. Since the W3C can continue to successfully work around patents during the second decade of the Web's development, the W3C does not need to adopt RAND Licensing. Since the W3C does not need to adopt RAND Licensing, the W3C should maintain its current patent policy of RF Licensing. I object to the PPWG's statements in Sub-Section 2.1 regarding the rise in patent issuance as misleading. Sub-Section 2.1 states at point 2: Patent offices, led by the U.S. PTO, are issuing patents, especially in the software sector, at record rates. While the U.S. PTO is issuing patents (including software patents) at record rates, these patents are not necessarily valid. The U.S. PTO has been issuing patents at record rates during the past decade because Congress and the Department of Commerce, under heavy lobbying from industry, pressured the U.S. PTO to speed up examination of patent applications. By speeding up examination of patent applications, the U.S. PTO, through its Patent Examiners, have not had time to adequately examine these patents. Since the U.S. PTO has not had time to adequately examine these patent applications, their validity is questionable until tested in litigation. Since very few of these software patents issued in the last decade have been tested in litigation, they remain of questionable validity. Thus, although the number of patents issued in the last decade has risen, the number of valid patents issued in the last decade has not necessarily risen. Since the number of valid software patents issued in the last decade has not necessarily risen, the authors statement regarding the rise in issuance of patents is misleading. Since the PPWG's statement regarding the rise in issuance of patents is misleading, the PPWG should delete the statement from the PPF. The PPWG's statement regarding a rise in issuance of software patents in jurisdictions other than the United States is also misleading. The European Union has declared a moratorium on software patents until November 2001 (see http://www.european-patent-office.org/news/pressrel/2000_11_29_e.htm). Furthermore, the Japanese Patent Office is not necessarily open to software patents, as they recently notified Amazon.com that they were rejecting Amazon.com's "1-click" patent application (see http://www.idg.net/ic_536369_1773_1-3921.html http://slashdot.org/articles/01/05/15/1335252.html ). Many other jurisdictions do not recognize software patents. So, the fact that many jurisdictions do not recognize software patents and that the Japanese and European Patent Offices are lukewarm on software patents indicates that Patent Offices besides the U.S. PTO are not in fact issuing more software patents. Since Patent Offices besides the U.S. PTO are not in fact issuing more, or any, software patents, the PPWG's statement regarding the rise in issuance of software patents in jurisdictions other than the United States is misleading. Since the PPWG's statement regarding the rise in issuance of software patents in jurisdictions other than the United States is misleading, the PPWG should delete this statement from the PPF. The PPWG's statement regarding a rise in issuance of software patents is irrelevant to its patent policy. The fact that more software patents are being issued is irrelevant to the development of the Web. More patents are being issued on computer hardware; shall we change our licensing practices on computer hardware because more patents are being issued on computer hardware (see the above discussion on PCI/AGP versus MCA in Point 1). The amount of software patents issued is not relevant to whether the W3C should allow RAND Licensing. Since the amount of software patents issued is not relevant to whether the W3C should allow RAND Licensing, the PPWG's statement regarding a rise in issuance of software patents is irrelevant to its patent policy. Since the PPWG's statement regarding a rise in issuance of software patents is irrelevant to its patent policy, the PPWG should delete this statement from the PPF. The PPWG's statement regarding the popularity of Business Method Patents is also misleading. The authors state: ...business method patents have become [an] increasingly significant factor in the ecommerce marketplace. Business method patents are a factor only in the United States. Most jurisdictions do not allow or even recognize business method patents (see above discussion on Amazon.com and the Japanese Patent Office. Furthermore, I note that the Patent Policy FAQ omits the Patent Office practices of Canada, Latin America, and Taiwan, all significant industrialized countries.). Since most jurisdictions do not allow or even recognize business method patents, the PPWG's statement that business method patents are popular is misleading. Since the PPWG's statement that business method patents are popular is misleading, the PPWG should delete this statement from the PPF. The validity of business method patents is also questionable. The U.S. PTO must grant a patent application unless a Patent Examiner can find prior art which anticipates or renders obvious the invention embodied in the patent application. Due to time and financial restraints, Patent Examiners mainly rely on issued patents as prior art for rejecting patent applications. Prior to the State Street decision, the U.S. PTO had issued practically no patents on business methods. When corporations started applying for business method patents in the wake of the State Street decision, the U.S. PTO had no issued patents to reject these applications. Since the U.S. PTO had no issued patents to reject these applications, Patent Examiners were required to issue these patent applications as patents. However, the fact that these business method patents issued does not mean they are valid. Since Patent Examiners only considered issued patents when examining these business method patent applications, prior art may exist and be introduced at trial during a patent infringement lawsuit which will invalidate these patents. Since prior art may exist and be introduced at trial during a patent infringement lawsuit which will invalidate these patents, the validity of these business method patents is questionable. The PPWG's questionable statements in Section 2 obscure the fact that RAND Licensing will grant Patentees more rights than they currently possess. Most software patents are issued in the United States. The jurisdiction of the United States extends only to its territorial borders. However, the W3C sets standards for the entire planet. Since the W3C sets standards for the entire planet, RAND Licensing will allow Patentees to obtain royalties from nations which do not allow or even recognize software patents. Since RAND Licensing will allow Patentees to obtain royalties from nations which do not allow or even recognize software patents, RAND Licensing allows Patentees to obtain royalties in nations where they normally would not. Since RAND Licensing allows Patentees to obtain royalties in nations where they normally would not, RAND Licensing grant Patentees more rights than they currently possess. 4. Miscellaneous Objections (i) Sub-Section 2.2 The first 3 consensus points (interoperability, disclosure, and public access) of Sub-Section 2.2 support RF Licensing. I object to the flexibility point as being unnecessary. (ii) Section 3 SUMMARY I object to the first sentence as misleading. The first sentence of Section 3 states: In order to bring about a higher level of certainty to patent licensing terms... I feel that this sentence is misleading because it does not define what is uncertain about the W3C's current patent licensing terms. Furthermore, it suggests that the current patent licensing terms are somehow uncertain. (iii) Section 4 DEFINITIONS Sub-part (a) defines "Essential Claims". However, the definition does not explain who determines a non-infringing alternative or how a non-infringing alternative is determined. I submit that either the WG as a whole or an independent third party should determine these issues. In no event should the Patentee be allowed to determine these issues, due to the clear conflict of interest. CONCLUSION I support the inclusion of Royalty-Free Licensing and the Patent Disclosure Requirements in the draft Patent Policy Framework. I oppose the inclusion of RAND Licensing in the proposed Patent Policy Framework. I believe that Royalty-Free Licensing is completely adequate to accomplish the goals of the W3C's Patent Policy and is in the Internet community's best interests. I therefore request that the W3C rewrite the draft Patent Policy Framework to include only Royalty-Free Licensing of Patents and related Intellectual Property Rights and to add the above-listed requirements to the Patent Disclosure obligations. Sincerely yours, Daniel E. Maddux 4100 Greenbriar Street Number 342 Houston, Texas 77098 dpaladin@hal-pc.org
Received on Wednesday, 10 October 2001 13:31:55 UTC