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Final Comment

From: Adam Warner <lists@consulting.net.nz>
Date: 30 Sep 2001 22:26:59 +1200
To: www-patentpolicy-comment@w3.org
Message-Id: <1001845619.712.104.camel@work>
http://www.openphd.net/W3C_Patent_Policy/update.xhtml


Information Update: W3C and the Promotion of Fee-based Standards for the
Web

Adam Warner

This short document summarises some of the recent posts to the W3C
Patent Policy mailing list
(http://lists.w3.org/Archives/Public/www-patentpolicy-comment/).

Please email all comments or suggested corrections to this document to
comment@openphd.net.

This draft is copyright Adam Warner, 30 September 2001. It may be
distributed freely.

Table of Contents

    A Point that Needs to be Emphasised
    RAND may not be as Non-Discriminatory as it appears
    Let's have RAND Licensing Terms because Body "X" has RAND Licensing
Terms
    Closing Comment


A Point that Needs to be Emphasised

The W3C is not proposing that all future web standards will be licensed
on RAND terms. This is at least a two dimensional issue. In one
dimension the W3C is proposing that there can be royalty-free (RF)
working groups as well as RAND working groups. In the other dimension we
are already seeing RAND licensing terms beginning to appear in
Recommendations (as I pointed out in the recently released SVG 1.0
Recommendation). RAND is not official W3C policy but it has already
become a part of the W3C's day-to-day operations.

The main thrust of my argument is that I want to see the W3C continue to
give full support to royalty-free standards. I don't want to see RAND
working groups set up for WWW policy. I don't want to see RAND
compromises being made in forthcoming standards. In just want W3C
standards to remain free and the W3C name to continue to be an assurance
of quality-royalty-free-standards.


RAND may not be as Non-Discriminatory as it appears

Apart from the issue that RAND terms may preclude open source/free
software development, in this well-argued post
http://lists.w3.org/Archives/Public/www-patentpolicy-comment/2001Sep/0036.html Toby Meehan points out that even though RAND is supposed to be non-discriminatory, Part 8.2 of the Working Paper states: "Implementers may decline the terms offered by the Contributor and, as in all cases, have the option of negotiating a license for the Essential Claims held by the Contributor on different terms." Or as Toby Meehan puts it "So it's offered on a non-discriminatory basis unless they can negotiate something else...that doesn't sound non-discriminatory to me. I'm sure IBM will be able to negotiate something /much/ better than I."

Meehan's conclusion is: "This document's attempt to characterize this
policy change as the W3C offering its standards on a "reasonable and
non-discriminatory terms" fails. After realizing this and re-reading the
document, I believe this policy change is really just a measure to
protect the W3C from legal challenges arising from patent infringement
(most likely from its own members). A classic institutional manuever
used by the IEEE and other standards bodies. For the W3C commercial
members, this is a financial wind fall (as are all the intellectual
property laws). For those non-commercial activities, you've just been
excluded from the party."

Meehan recognises that the W3C is in a difficult position with respect
to recognising patents but implores the W3C "Please don't approve this
policy change. Figure some other way to deal with patent infringement."

My comment here is that RAND terms are simply acquiescence. A RAND
license "shall be available to all implementers worldwide, whether or
not they are W3C Members; ... [and] ... may be conditioned on payment of
reasonable, non-discriminatory royalties or fees;". Sure this license
may help the W3C to overcome most patent issues and help working groups
to focus solely upon technical standards. But only by abandoning the
attempt to create free standards in the first place.

To put this another way, I value the work the W3C puts into helping
ensure standards will be free just as much as I value the standards
themselves. Moving to RAND licensing terms just throws away an important
function of the W3C.


Let's have RAND Licensing Terms because Body "X" has RAND Licensing
Terms

This is best answered by J. Bashinski
(http://lists.w3.org/Archives/Public/www-patentpolicy-comment/2001Sep/0011.html): "It is true that some standards bodies operate successfully under RAND rules, and that some standards requiring licensing have been adopted without apparently serious damage. However, this has happened mostly in cases, such as consumer electronics or semiconductor manufacture, where a few large companies with enormous capital investments make essentially all of the products. In such a situation, patent licensing does not greatly increase the already large barriers to entry. This does not describe the environment in which W3C recommendations are used; in software, patent licensing costs (including administrative costs) may frequently exceed all other costs involved in developing a product."

Moreover: "It is extremely rare that a patent covers every possible way
to implement really important functionality. It is therefore usually
unnecessary to standardize around a patented method. In the very
uncommon cases where a patent effectively covers all ways of doing
something extremely useful, the patent holder is in a position to
dictate the terms under which her technology is to be used, and has no
incentive to agree to RAND terms, or indeed to work through a standards
body at all. In such a case, the W3C's position becomes moot."

As Jonathan Graehl writes
(http://lists.w3.org/Archives/Public/www-patentpolicy-comment/2001Sep/0042.html): "Companies that contribute to standards should be required to guarantee royalty-free license for technology they wish to promote through inclusion in W3C standards - including all future patent claims. If they are not willing to do so, then they can continue to enjoy their exclusive right to the technology - but will suffer in that their technology will not be adopted as part of the free, open standard."

This is the carrot and stick that the W3C will be giving up if it allows
RAND working groups. Members will no longer just have to decide whether
to freely provide their technology to promote a W3C standard or to
pursue a de facto standard. They will have a third choice: lobby for a
W3C sanctioned RAND-based Working Group and Recommendation.

No-one could put it simpler than Maciej Stachowiak
(http://lists.w3.org/Archives/Public/www-patentpolicy-comment/2001Sep/0062.html): "The seal of approval provided by standardization is one of the few real incentives to encourage patent-holders to license patented technologies royalty-free. Please reject this policy."


Closing Comment

I am humbled by the impressive responses that continue to be posted to
the W3C Patent Policy archive. I am fully willing to correct any
mistakes that I made in my preliminary analysis as I continue to follow
this issue. In writing my first draft I kept one issue firmly in mind:
No matter how much the W3C's Patent Policy may obscure the fact, this
policy does legitimise fee-based standards from the W3C; and the idea
that "Recommendations addressing higher-level services toward the
application layer may have a higher tolerance for RAND terms." is
disappointing. This is the area the WWW is moving into. Dr Hoylen Sue of
the W3C told us this at a W3C seminar I attended last month. Application
services and automated applications are the future of the WWW.
Unfortunately the future is looking increasingly bleak for free and open
standards.
Received on Sunday, 30 September 2001 06:27:02 GMT

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