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From: Tim Bray <tbray@textuality.com>
Date: Thu, 11 Oct 2001 22:18:12 -0700
Message-Id: <5.1.0.14.2.20011011213627.020e1ec0@pop.intergate.ca>
To: www-patentpolicy-comment@w3.org
Pardon me for loading down the already-bulging submission inbasket
with two separate messages, but I've been thinking and listening.
Here's a few points that I think may be helpful, including one
or two suggestions I've not seen made elsewhere.

There's lots of room for debate as to whether or not software patents 
are good or not, and as to the policies of the US issuing organization.  
The W3C need not and should not take a policy pro or con on these 
issues.  The W3C also cannot ignore the existence of these problems.  

Conclusion 1 
 The consideration of patent and IPR-related issues at W3C is 
 commendable and necessary and needs to proceed at high priority.

The wonderful growth and flourishing of the Web has been based largely 
on innovation that has branched off in entirely unpredictable 
directions based on people making free use of the generality, 
flexibility, and scalability of the protocols invented with the Web 
and cultivated by the W3C.

Should it become impossible to make use of certain portions of Web 
infrastructure without paying for the rights to uses particular pieces 
of intellectual property, those portions can no longer be expected to
achieve the Web's full potential via the kind of growth and flourishing 
that have been extremely kind both to the human users of the Web and 
to the enterprises that comprise the W3C membership.

Conclusion 2
 As a matter of policy, the W3C should  restrict the scope of its 
 Recommendations to areas where developers can proceed implementing 
 without having to pay for rights to use intellectual property.

Due to the large and poorly-understood technical content of the 
universe of patents, both those held by W3C members and non-members,
the restriction of scope aimed at by Conclusion 2 is not easily 
achieved in practice.

Based on my experience in the W3C process, it seems that the notion 
of "contributorship" to a Recommendation based on WG membership (or 
not) is flawed - in practice, participation in a WG is a matter of 
degree, not a binary condition.

Conclusion 3: 
 To aid in achieving RF status for Recommendations, the W3C should be 
 diligent in advertising the technical content of the projects on 
 which it's working [I believe the current process covers this 
 satisfactorily] and actively solicit its membership and the broader 
 community for information about IPR that may apply, and for a 
 determination of whether the IPR's holder is willing to grant RF 
 rights to an extent sufficient to allow cost-free implementation of 
 the eventual Recommendation.

Conclusion 4: 
 If IPR issues come to light and the IPR holder is not prepared to 
 grant RF rights, W3C WGs should make efforts to the technical content 
 of their work to avoid infringing on those IP Rights in their 
 eventual Recommendation.

Conclusion 5: 
 If it is neither possible to obtain RF implementation rights nor 
 to work around the IPR issues, the W3C should make a determination 
 that the area of work in question is not suitable for inclusion in 
 the part of the Web infrastructure that the W3C is charged with 
 building and enhancing, and cease the work in question.

Conclusion 6: 
 If IPR issues come to light after a Recommendation has been 
 published, the W3C should attempt to obtain RF implementation rights.  
 Failing that, the W3C has two obvious tactical choices:
 A. Deprecate the Recommendation in question and remove the W3C
    imprimatur.  The negative publicity associated with this may
    be helpful in negotiating RF implementation rights.
 B. [This idea was suggested by another colleague who is reluctant
    to speak up here] Apply commercial pressure to the holder of the 
    IPR in question based on the W3C's own extensive IP portfolio, 
    comprising trademarks and copyrights.  The W3C owns trademark on 
    "HTML", "XML", and many other widely recognized terms; it may be 
    viable to withhold the right to use these trademarks from those 
    who attempt to generate revenue from royalty charges arising from 
    implementations of W3C Recommendations.

I hope that this is helpful, and my sincerest sympathy goes out to 
those who must read through this high volume of input on this issue.
I can only console them by reassuring them that the work is indeed
important.

Cheers, Tim Bray
Received on Friday, 12 October 2001 01:18:30 GMT

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