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comments on patent policy

From: Mark Ellis <deadplanet@geocities.com>
Date: Thu, 11 Oct 2001 01:31:42 -0700
Message-ID: <3BC558EE.6000800@geocities.com>
To: www-patentpolicy-comment@w3.org
Cc: deadplanet@geocities/com.visi.com
The purpose of an open standard is to allow interoperability among
independently-developed implementations of that standard.

The purpose of a patent is to empower the patent holder to suppress
independently-developed applications of technology described in the
patent's claims. A patent is therefore a legal mechanism for closing
what might otherwise become an open standard.

Is there evidence that any patented software technology has such
intrinsic value as to be necessarily superior to any non-patented
alternative? What can be done one way in software can be done another
way. Microsoft has shown us that the monetary value of ``intellectual
property'' in the software industry comes not from having exclusive
rights to better technology than is available to other developers, but
from the power it allows over interoperability. In the hands of a
dominant firm, that power marginalizes competitors and amplifies market
power into monopoly.

The W3C's new Patent Policy Framework threatens the Consortium's own
legitimacy by sacrificing the stated goals of interoperability,
universal access, and decentralization to the commercial interests of
particular members.

The requirement that license fees be ''reasonable and
non-discriminatory'' is inadequate protection for an open Web. What is a
``reasonable'' license fee for freely-redistributable software? The
amount doesn't matter. If fees must be paid, someone has to know how
many copies have been distributed. Accountants have to keep track of
money coming in and money paid to patent holders. Lawyers have to dot
the i's and cross the t's of the software developer's relationships with
patent holders and end users. Software companies can deal with such
things - free software developers cannot.

We don't have to become deeply involved in conspiracy theories to note
the affiliation of the first-named author of the Framework, to recall
the ``Halloween Document'' describing possible Microsoft strategies
against open-source software, and to envision a possible connection to
Microsoft's re-invention of itself as a provider of XML-based Web
services.

Like Internet stocks, Internet standards have value if and only if
people believe in them. Any formal standard that can be taken seriously
must be backed by an organization that has some legitimacy as a
standards body. The W3C has had undeniable legitimacy: founded and
headed by Tim Berners-Lee, it has unique authority over the HTTP and
HTML standards, and its standardization efforts for XML and other
technologies have been widely accepted.

Now, the W3C faces a sad dilemma. Many of the W3C's full members, paying
fifty thousand dollars a year for their seats at the table, may be eager
to buy into a Microsoft E-Commerce Co-Prosperity Sphere, and may want
the proposed new policy very much. But the responses that the W3C has
already received show that many of the Web's foot soldiers - and some of
its greatest innovators - will stop believing in the W3C as a legitimate
proponent of standards if that policy takes effect. Facilitating the
creation of patent pools and cartels is incompatible with ``leading the
Web to its full potential.''

Mark Ellis
Received on Thursday, 11 October 2001 02:27:14 GMT

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