- From: Peter DiMauro <pdimauro@icta.org>
- Date: Thu, 11 Oct 2001 11:51:09 -0400
- To: "'www-patentpolicy-comment@w3.org'" <www-patentpolicy-comment@w3.org>
This is a substantive comment. I browsed the W3C Patent Policy Framework , and one thing which I came away with was the toothlessness of the "Good Faith Disclosure" rules. I quote: "An Advisory Committee representative is expected to circulate requests for patent disclosure through the same channels as any other W3C material (such as the W3C NewsWire, Newsletter, and W3C specifications) is distributed within the Member organization. Disclosure obligations shall not obligate a Member to conduct a search of its patent portfolio. No extraordinary effort is required for patent disclosure requests, nor should such requests be given lower priority than other communication efforts undertaken by the Advisory Committee representative. Recipients of such material are expected to respond, if at all, based on their actual, personal knowledge of their organizations patent holdings and applications. No implied knowledge should be imputed. At the same time, if individuals take advantage of information from W3C Working Groups in formulation of patent strategy, they should make appropriate disclosures in response to requests through circulated by the Advisory Committee representative." To repeat: "Recipients of such material are expected to respond, if at all, based on their actual, personal knowledge of their organizations patent holdings and applications. No implied knowledge should be imputed." This means that corporations can play a shell game. All a corporation has to do to evade the disclosure requirements, is to send a representative to the standards body, who has been "firewalled" from all knowledge having to do with patents!!! Then the corporate member of the standards body can play the "plausible deniability" game. I feel that the statement "No implied knowledge shall be imputed" should be changed to "All implied knowledge shall be imputed as a rebuttal presumption". Furthermore, they define "Essential [Patent] Claims" in a very temporally limited manner: ""Essential Claims" shall mean all claims in any patent or patent application with an effective filing date within one year and one day after the publication of the first Public Working Draft, in any jurisdiction in the world, that a Member (or a licensor or licensee, with reference to entities other than Members) owns, or under which a Member (or a licensor or licensee) has the right to grant licenses without obligation of payment or other consideration to an unrelated third party, that would necessarily be infringed by implementation of the Recommendation." Thus they exclude "Essential claims", those claims which are filed in the Patent Office BEFORE publication of the first Public Working Draft! That really sucks!! Everyone knows that members of standards bodies can run to the patent office before such publication, as soon as they get wind of what will become the adopted standard, or what is likely to become the adopted standard. The definition of Essential Claims, makes such "insider trading" permissible. Anyone interested in the W3C Patent Policy Framework must be made aware of the Unocal patent issue. The Unocal corporation operates oil refineries, and participated in standards-settings bodies in California circa 1990, regarding "reformulated gasoline fuels" (RFG), automotive fuels which would meet new more stringent emission requirements in use. Some time before the RFG standards were published, Unocal filed a patent covering all numerical possibilities for gasoline parameters that might be adopted as the standard. When the standard was adopted, they did a "picking and choosing" from among the numbers in their patent application, to get claims actually issued as a patent. Unocal has sued refinery operators nationwide for simply making gasoline which meets California government standards. In return Unocal has been countersued by ExxonMobil. The issue of "gaming the patent system" has come up repeatedly. Therefore, even in a "mature" industry such as oil refining, abuses can and have clearly arisen when patents are allowed to mix freely with standards-setting. Why should the W3C build-in abuse into their definitions?? Peter T. DiMauro, Ph.D. Registered Patent Agent Project Director, Patent Watch International Center for Technology Assessment 202.547.9359 pdimauro@icta.org http://patentwatchproject.org -oo0oo-
Received on Thursday, 11 October 2001 11:34:51 UTC