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Comment on W3C's proposed (RAND) Patent Policy

From: John L. Males <software_iq@TheOffice.net>
Date: Thu, 11 Oct 2001 23:47:39 -0500
To: <www-patentpolicy-comment@w3.org>
CC: "Eric S. Raymond" <esr@snark.thyrsus.com>, "TopXML - Mark Wilson" <markwilson@topxml.com>, Myddrin <robknapp@nc.rr.com>, editor@lwn.net
Message-ID: <3BC62F9B.3553.270B60E@localhost>
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As an IT Professional I would like to offer my comments to the W3C's
proposed W3C (RAND) Patent Policy.

As it is obvious I am not a "known" professional in the internet
world, I think it is important for me to briefly introduce myself to
the W3C.  That way the W3C has a context and perspective of the
comments and thoughts I am expressing.  I am a Software QA/Testing
Specialist.  That means what I do is ensure the "software" "meets the
specifications".  That also frequently entails providing comment on
areas of concern regarding the software and/or its specification.

My interest in the W3C's proposed policy is as a technically oriented
User.

I have made a great deal of effort to research and then finally
compose this response.  I really needed more time to make my
response.  I do thank the W3C for extending the deadline to 11
October 2001 for comments to be accepted for consideration.  I could
not make a reasonable response after learning about the proposed
(RAND) Patent Policy 29 September 2001 via Linux Today.  My apologies
if there are typo errors or the odd gap in my articulation of my
thoughts.  I did not have as much time as I needed to properly proof
read my response.  If there is anything that needs to be clarified
please respond so requesting.  If I find such errors I trust it is
acceptable for me to indicate the correction(s) via the mailing list.


Executive Summary
*****************

The currently proposed W3C (RAND) Patent Policy:

    i) Failed to provide proper notification to the "community" and
as a consequence effectively reduced the comment period to 13 days
instead of the 42 days allotted.
   ii) Fails to acknowledge the internet and its associated standards
are public property and therefore require public standards.
  iii) Provides patent owners with a number of "discriminatory"
advantages and/or conflicts of interest
   iv) Discriminates against the end users by creating islands where
the patent related standards can be implemented in open or closed
source models with no license/royalty fee requirement.
    v) Creates a breeding ground for "approved standards" to be
suspect of W3C conflict of interest(s).
   vi) Opens the door to legal action of the W3C, W3C staff, and/or
W3C members for standards encumbered with patents.
  vii) Fails to consider the varied legal geography that can render
different implementation levels of the proposed (RAND) Patent Policy,
therefore afford different implementations of the proposed Policy
ergo discrimination.
 viii) Provides clear incentive for a new standards body to be
created to ensure the internet and its associated standards are
public property.



My position on the currently proposed W3C (RAND) Patent Policy in
order of preference:

 A) I oppose any W3C approved W3C standard that incorporates any
existing patent.
 B) I oppose any license/royalty fee due for a W3C "approved
standard".


Background
**********

My interest in the W3C's proposed policy is as a technically oriented
User who has been through a few closed source/propriety based OS's
and a number of associated applications on these systems bought and
paid for.  I have not been happy with the "Major" elements of such
software for a number of solid reasons both technically and vendor
practices/policies over more than 10 years. I have made a choice to
go the Open Software route, software with licenses that hold a
collective sprit by the licenses referenced via:

http://www.opensource.org/licenses/

I made this decision based on some key requirements.  One of those
requirements is long term usage facilitated by the standards and code
being open for anyone to fix, improve, or make reference to in
building programs/interfaces that allow interaction of software.  I
am almost fully converted onto an OSS system.  A few OSS solutions
still have to be sourced.

The decision I made took into consideration a number of historical
examples that exist in this very young Internet and bit older, early
teenager IT industry with closed and/or patented technology.  I am
therefore motivated to make my comments to the W3C on the proposed
W3C RAND Policy using my QA/Testing experience in reviewing the
proposed policy:

  1) With all due respect there has not been enough time for those of
us not in the loop.  The various details and history that have
brought this W3C (RAND) Patent Policy proposal to its present form
does take time research - not just from the proposal information on
the W3C site, but also via those who make references in their
comments on this policy and the comments themselves.  I am well aware
of the point(s) made by the W3C that there had been initially 6 weeks
to comment on the proposed policy.  It would seem painfully clear
that W3C (RAND) Patent Policy effort was NOT made for interested
parties to be aware of this proposed Policy.  Look at the numbers,
they speak clear on their own- 7 comments for 10 - 28 August 2001;
746 comments for two days, 29-30 September 2001, 755 comments 03 - 30
September 2001 9 of which are prior to 29 September 2001; and 1486
comments thus far for 01 - 11 October 2001.  That is basically 2241
comments in a 13 day period.  Sounds to me if an effort was made by
the W3C initially there would of been many people that would have
commented on the proposed RAND Policy by the initial 30 September
2001 date.

  2) Open source implementations of a standard would not be possible
for all intents and purposes as a license/royalty fee requirement
would discriminate against software developed and made available for
no profit.  Also of note is such entities doe not have the ability to
engage legal council, so will likely steer clear of any royalty free
elements of the standard to avoid legal issues they cannot afford or
personally risk.  That means most of a "standard" my not be
implemented via OSI type solutions rather than just avoiding the
patent related elements.

  3) Those who do have the financial resources to pay the
license/royalty fee through their diverse income resources could
still offer software containing their approved W3C patent related
standard for free in order to gain market share against competitors
(including other W3C members).  The patent holder might also offer
the software containing any of their own patent related standards for
free to compete against alternative software developed for no profit.
 Further this would add a risk factor consideration that would shy
"smaller" interests from licensing and implementing a patent related
standard.  Does this promote a healthy environment for a standard to
be accepted by users?

  4)) Part of what patents are about is to give a competitive edge to
a company.  The bigger the edge usually translates to a higher
licencing/royalty fee.  Has anyone considered how competing interests
of commercial members of the W3C are going to play on deciding on a
"standard" in a "reasonable, non-discriminatory" approach under a W3C
(RAND) Patent Policy?  It would be my considered opinion this also
breeds conflict of interest issues.

  5) The company/entity that holds that patent associated with the
"standard(s)" does not have to pay any license/royalty fee for using
the patent in their product.  Some may argue that there were costs
involved to develop the patent, filing, getting it approved, legal
costs, costs to defend the patent, etc.  The W3C (RAND) Patent Policy
does not address this and therefore gives the patent owner a
"reasonable" ("discriminatory") advantage.  Have anyone ever heard of
"reasonable discrimination"?  I find it very hard to believe time or
energy could develop any "policy" to balance such a (conflict of
interest) issue, let alone the time it would waste from the real
mission, Web Standards. 

  6) The essence of patents is to allow the patent holder the
exclusive right for 20 years to license their "idea" to others.  The
concept is basically one where revenue is generated for the patent
holder.  This would clearly cause some sort of imbalance to
proposing, merit consideration and approval mindset in evaluating
"standards" related to patents.

  7) Patents are only valid in the countries where a patent has been
granted.  That means users in those countries where a patent is
granted will be discriminated against.  Simply put users in such
countries will be paying a fee as a consequence of the license terms
associated with the patent related standard.  Developers in countries
where the patent is not filed and/or approved would be free to
implement software that encompasses those patent related standards
with no need to pay a license fee.  I am sure I do not have to give
examples of prior software patent situations that software was
developed outside of the United States.

  8) Enforcing the right to use the patent related standard could be
a legal nightmare.  I do not believe there are laws in place
worldwide to enable any patent related standard's enforcement.  An
excellent example would be the patent related standard is server
focus/implemented.  Therefore servers in countries where the patent
has not been granted may run software implementing the patent related
standard.  The issues could get much more merky where users (clients)
in countries where the patent is granted interacts with servers in
countries where the patent is not granted to use the patent related
standard.  There are different combinations of scenarios that would
need to be considered.  In the end, all it will take is one of those
scenarios to be "legal" to diminish the licensing value of certain
types of patent related standards, and perhaps "incentive" as a
standard to approve by the W3C.

  9) Patents can be costly item to develop, package, file for
approval, legally defend when breached, etc.  That again indirectly
discriminates against those who do not have the resources in people,
talent and money to even develop patents that may be worth
consideration as part of an approved standard.  I am not endorsing
the proposed W3C (RAND) Patent Policy here, I am simply pointing out
one more element of discrimination in the proposed Policy.

 10) What liability considerations are encumbered to the W3C, the W3C
staff and its members past, present and future by adopting any policy
that allows W3C patent related standards?  I would be inclined to the
opinion that any patent related standard opens the door to legal
actions not only between patent holders or their company, but now the
W3C would be a party to situations where the W3C as a organization
has approved a patent related standard.  For example am approved
patent related standard is later found to be subject to legal action
and/or claims.  Does the W3C have a budget, resources, and retained
expertise to cope with such a circumstance?

 11) There is no place for approving a patent related standard only
to then find that all else being equal the standard is not really
used.  Cases may include specialized use in a limited audience that
would actually use such a standard.  Perhaps some other open or
patent related standard supersedes it that does not use some or any
of the previous patents.

 12) There is the begging question of determining what
licensing/royalties remedy terms of licensing/royalties to licensee's
are reasonable under a very varied, but often short duty cycle,
technology lifecycle?

 13) Even the first cars of the early 1900's can still be driven and
used on the roads and still in fact get people from point A to point
B.  Can the same be said of much of the technology used and their
associated standards?  The internet and its standards are "public"
infrastructure.  Therefore there is no place for any standard that is
subjected to license/royalty terms to be used.  The reason for the
points is that a patent holder may take this into consideration a
number of variables, some of which are very subjective, when
determining a license/royalty fee for the patent.  Of course it would
also depend on how many licenses are taken up vs. where expected to
be taken up for the patent related standard.  Determining factors
would likely include over what timeline and the lifespan of the
patent related standard, consideration for break even point, and
other licensee's that may take up the patent related standard longer
down the lifespan should be factored into the "Reasonable" policy of
the proposed W3C (RAND) Patent Policy?  Sounds too complicated to
define in a policy assuming all the events are known in the crystal
ball.  Clearly nobody knows what the future holds for a just about to
be approved standard, therefore there can really be no definition of
"reasonable" for the purposes of any proposed W3C (RAND) Patent
Policy.


Ok, now that is clear why I oppose patent encumbered standards by the
W3C there have been two proposals put forward that would eliminate
some of the issues I have noted.

I would respectfully request another comment period from the
community should the suggestions of Myddrin and/or Eric S. Raymond be
taken and formulated into a evolved W3C (RAND) Patent Policy.  I
apologize to anyone that has made similar proposals, I simply have
not had the time to read though all of the comments provided thus far
on this matter.


The entry made by Myddrin Oct 2, 2001, 12:58:17 re:

Linux Today

W3C's Response to Public Comments on the Patent Policy
Oct 2, 2001, 05 :02 UTC (39 Talkback[s]) (4564 reads)

http://linuxtoday.com/news_story.php3?ltsn=2001-10-02-002-20-NW-CY-LL&
tbovrmode=1#talkback_area

This was the first time I had heard concept proposed.  I also like
the element of taking smaller business into consideration.  I saw it
about a week ago, but I could not remember where I say it so it took
me awhile to find it again.  I have chosen to include a copy of this
in my reply as I cannot find it in the comments posted so far and
wish it to be part of the official record.

Please know I am not taking any credit for Myddrin's comments.  I did
not have enough time to try to contact Myddrin to see if comments
were already made to

<www-patentpolicy-comment@w3.org>.

I have copied Myddrid in on this submission using the eMail address I
deduced from the Linux Today posting.  That way Myddrid is aware of
me referencing his comments.

==============================================================
==============================================================
Thank Goodness!
  I'll have to go over the papers in detail, but here's what I'm
thinking. 

  Patents are OK* as long as: 
  1) The submitter provides a GPL'd implementation of the patent to
the W3C 

  2) The submitter agrees in writting that, a non-exlusive,
no-strings-attached patent
  license is granted in pepurtuity for use in all projects using an
OSI approved license
  _AND_ for companies with net revenues under $1M USD. 

  3) Any backdoor patents (patents discovered after being made part
of the standard) are
  automatically stripped from the standard. If the patent holder is a
W3C member, they
  are fined $1M USD a day until the patent is in
compliance(retroactively). 

  The reasons are as follows: 
  GPL Requirement: it provides for a reference implementation, which
entities
  excempted from the license fees can use. Others can investigate the
reference
  implementation, but must license the patent and implement their
own. 
  It allows the patent holder to take advantage of the fast and
furious open source model
  of development. In exchange for these considerations, they end up
with a better product.


  The small bussiness excemption: Small bussiness are a corner stone
of the tech
  industry, providing many jobs throughout the world. As we all know,
small bussiness
  tend to become big bussiness quickly. An unfair burden on them is
an unfair burden on
  all. 

  The open source excemption: In recognition of the importance of the
open (or free)
  source development model to the internet community (60% of web
servers, 80% of
  email, DNS servers and so on and so forth), and that due to the
nature of open source
  development (that a RAND policy is defacto discrimatory to
organizations w/o a
  corporate backer) all OSI approved licenses should be allowed to
license patents
  without restrictions as long as the code remains open. Closing the
code puts the onus
  of payment on the entity closing the code. So, for example,
Netscape would have to pay
  for patents included in their closed version of mozilla... however
the contributors to
  mozilla would not have to pay for their open source version. 

  Submarine Patents:This provides an economic incentive for full
disclosure by W3C
  members. 

  I think this would achieve the W3C's goals and protect small
bussiness and open source
  projects. The W3C's goals seem to be: 

  Some of the goals of the proposed policy are to ensure that: 
  1. The Web community is not surprised by "submarine" patents 
  whereby unsuspecting participants are forced to pay license fees 
  after their participation in the creation of a Recommendation 
  that they thought was unencumbered. 
  2. Future work is not hindered because of Fear, Uncertainty, and 
  Doubt. The proposed policy is designed to promote better 
  decisions through disclosure of information. The expectation is 
  that information will allow a Working Group to proceed as is, to 
  work around a perceived patent obstacle, or to abandon work 
  entirely if perceived to be too encumbered by patents. 

  These two goals (all though they imply there are others which are
left unstated), are
  nobel... however we need to find some kind of middle ground where 
  I will try and and flesh this out and post it to the policy
folks... however, due to many
  deadlines coming up, my chances of doing so between now and the new
deadline are
  very short. If someone else wants to clean this up and submit it,
they are free to do
  so...although I do ask to be credited :) with and "inspired by a
post by Myddrin on
  linuxtoday" and a link to this post. 

  --- 
  Myddrin 
  Gnosis(the LIMS) -- glims.sf.net 
  Panda Thumb -- ptmb.sf.net 
  *Software patents are rarely ok. In fact I've yet to see a
non-trivial software patent. I'm
  sure some exist in the AI, a graphics proccessing area... but I've
not seen them.
==============================================================
==============================================================

The next comment I saw two days ago that had similar thinking to
Myddrin was the already posted submission by Eric S. Raymond, 09
October 2001 about 11:20.  Eric's comments can be found via


http://lists.w3.org/Archives/Public/www-patentpolicy-comment/2001Oct/1
310.html

- -- OR --
http://linuxtoday.com/news_story.php3?ltsn=2001-10-09-011-20-OP-CY-LL


Please note I do not know Eric.  I copied Eric in on my submission so
he is aware of my referencing of his thoughts and that there has been
some other similar thoughts floated that Eric may find of interest.


Regards,

John L. Males
Software I.Q. Consulting
Toronto, Ontario
Canada
11 October 2001 23:47
mailto:software_iq@TheOffice.net
mailto:jlmales@softhome.net


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Received on Thursday, 11 October 2001 23:47:49 GMT

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