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Patent policy comment

From: Alisdair Odd <alisdairodd@home.com>
Date: Thu, 11 Oct 2001 00:22:53 -0700
To: <www-patentpolicy-comment@w3.org>
Message-ID: <NFBBIAJFELEMNGNPABDKMEABCAAA.alisdairodd@home.com>
To w3c.org and in particular the authors of the patent policy proposal

	This letter is in responce to your proposal to introduce a formal patent
policy for the w3c.org to adopt.  No reasonable person would dispute that
web technology has become more commercially critical and the impact of
software and business process patents are felt more strongly in the Web
development arena, it is necessary to adopt a comprehensive policy and
process for addressing the relationship between the open technical
recommendations recommended by W3C and patent claims of both W3C Members and
others.  What this means is that the W3C cannot avoid taking a position on
software patents.
	Members of the W3C consortium wish to promote their software and business
processes as standards, however they also wish to protect their investments
in their development with patents and benifit financially from their
issuance.  You yourselves state that until now the world wide web has been
an "unprecedented burst of entrepreneurial energy and global cooperation"
and "Both the competitive forces which have lead to innovative technology,
and the cooperative spirit which has produced global interoperability
standards at an extremely rapid pace have occurred, until very recently, in
a market environment without any significant intellectual property licensing
requirements".  The PPWG then states further why a patent policy is becoming
necessary namely the web is converging with other technological sectors
where patents are a tradition, more software patents are being issued (in
those contries that recongise them), other respected patent bodies have
barries to acceptance of standards with onerous licensing requirements, and
software patents are controversial.
	The view that the increased role of patents in the W3C standards setting
the "industry is maturing" is specious analogy of the software industry with
the telecommunications and consumer electronics industries, which are
fundamentally different and obey different laws economic and physical let
alone judicial.  That "Others view the rise of patents in the Web standards
landscape with concern" is a euphemism, this is the direst threat the web
has faced, perhaps the only real threat.  The essence of your consensus is
the same "Preservation of interoperability and global consensus on core Web
infrastructure is of critical importance. So it is especially important that
the Recommendations covering lower-layer infrastructure be implementable on
an RF basis."  Also the following are good recommendations "Better
disclosure: A clear process, to which Members are committed and/or bound to
ensure better disclosure of essential patents as a condition of Membership,
is vital. Access for general public (not just Members): Licensing terms for
essential technology should be available on a non-discriminatory basis to
W3C Members and non-Members alike".
	You wrote (free)"Market dynamics that have lead to rapid innovation,
worldwide proliferation of standards, and a high degree of entrepreneurial
development may be threatened by barriers posed by even reasonable licensing
terms. In this view, the highly decentralized Web industry structure is so
unlike the industries in which patents play a large role, that the reliance
on licensing models from those industries is considered inappropriate",
incorporating patents into this market will introduce less competition by
denying those corporations or other entities that cannot afford the
licensing terms of the patented standards entry.  So in essence you wish to
break what is not broken for no reason but the profit of some members of the
W3C.
	The spectre of patent encumbered standards that limit the openess and
universal accessibility of the web are the motives for the following,
"Recommendations addressing higher-level services toward the application
layer may have a higher tolerance for RAND terms" and "Working Group
flexibility: One patent licensing framework may not be appropriate to every
W3C Working Group. Therefore, Working Groups should have flexibility to
specify minimum licensing terms as part of their work. These intellectual
property rights requirements should then become the basis for Advisory
Committee and Director review of the resulting specification."  In essence
the idea is that some small technologies peripheral to the core of the web
can use standards that are patented and require royalties, and that working
groups should have most of the control on the patent policy for any given
standards decision.  What W3C standard is not central to the web?  There is
none that would be of interest to your consortium by your own mandate. Also
if you don't have a firm standard policy to begin with, why have one at all?
There must be a set of criteria for standars involving patents that is used
or the policy is worthless in directing decisions by working groups.
	Not being a patent lawyer, I will comment on what I consider to be the most
egregious parts of the proposed policy.  What is most objectionable about
the rand licensing mode are E)5 and e)4, they should not even be considered.
The requirement to implement a web standard that requires fees or royalties
is both unreasonable and discriminatory!  No small company could begin to
compete with a well establish corporation with rand patents on web
standards, it create a barrier of entry to a free market, and can create
artificial monopolies.   Also a proposed standards rand license that is
"conditioned on a grant of a reciprocal RAND License to all Essential Claims
owned or controlled by the licensee and its Affiliates" would entangle all
further standards that involved the proposed rand standard with the
discriminatory fees/royalties compounding an initially small problem! Hence
e)4 is unacceptable in its entirety.  My recommendation is make it policy to
make all licenses royalty free.
	As for most of the rest of the document as far as I understand it, it has
some good recommendations.  Full disclosure is a good thing.  So to sum up,
I would recommend you to not consider a rand license at all but to make it
policy to only accept royalty free standards.  If your members wish to make
profits off of patents let them patent their implementations of royalty free
standards, and still compete with everyone on the world wide web.
	A word of warning, if your consortium goes ahead with a rand mode license
policy, which you have admitted has not so far been necessary (I am aware of
no standard proposed that required using the rand mode, so why consider it
at all?) then your standards body will quickly become a pariah among web
developpers.  You would be betraying all the users of the web in favor of
whoring yourselves to the profit a plutocracy of large corporations your
"members".  As a preemptive measure, in good faith for all the developers,
users, and companies on the web who aren't your "members", I would recommend
opening up your membership  to everyone, individuals and corporations, for
free. If you don't do either of these likely a real standards body that
represents the individuals and companies you threaten to marginalise will be
created, and they will continue the tradition of a free unencumbered web,
where the contributions of all are accepted on merit not by virtue of having
specious patents, or enough money.  Personally, and I doubt I am alone, i
think the real potential of the web, to improve the lot of mankind, will be
seen from that organisation, hopefully you will be it if you make the right
decisions.  If not I hope, and will work, to make you reverse your decisions
or become an irrelevent memory along the road to a free, open and universal
global web.
		Alisdair Odd
Received on Thursday, 11 October 2001 02:25:44 GMT

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