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FYI posting inspired by IP note

From: Dave Burstein <daveb@dslprime.com>
Date: Sun, 30 Sep 2001 16:08:18 -0400
Message-Id: <5.0.2.1.0.20010930153724.035183b0@pop3.norton.antivirus>
To: www-patentpolicy-comment@w3.org
Cc: dave@farber.net, dave@scripting.com
Folks

I've been on a standards committee (for PDF-X) and reported extensively on 
many of the ongoing issue implied in the patent draft. My experience tells 
me the wording of the paper is not adequate to goals stated.

One section that absolutely should be changed is in section 4,, definitions.

"A claim is necessarily infringed hereunder only when it is not possible to 
avoid infringing it because there is no non-infringing alternative for 
implementing the required portions of the Recommendation. "

That should be immediately changed from "it is not possible" to "it is not 
practical". Otherwise, almost the entire document is moot. There will 
almost always be some alternative sufficiently "possible" to ensure 
protracted litigation. That "possible" alternative may make a web page 
unusably slow, impractical for disabled access, or vulnerable to security 
problems, but would disable all provisions of the document.

A second failure proven by real world experience is the imprecision of 
"reasonable". In practice, royalties demanded have been so high as to curb 
the products use. CDMA patent holders are seeking 9-10% of the gross; 
Microsoft claims MP3 royalties are too high to include it in Windows, and 
many key technologies like MPEG4 have so many patent claims that even 
giving each holder a half of one percent would dramatically raise the cost 
of the product.

     This added cost is critically important in poorer countries, and in 
technologies (like the net) we seek to use to spread knowledge. I submit

"A 'reasonable' royalty must add no more than 5% to the development or 
production cost of the product, either individually or in sum of all 
licenses required. If the technology is incidental to the primary purpose 
of the product/product, that royalty shall be no more than 2%."

If an absolute agreement on what is "reasonable" is impossible, then 
language that is not prescriptive can provide a useful guideline.

"A royalty will be presumed to be 'reasonable' if it adds no more than 5% 
to the development or production cost of the product, either individually 
or in sum of all licenses required. If the technology is incidental to the 
primary purpose of the product/product, that royalty shall be no more than 
2%."  That specifically does not forbid requesting a higher royalty where 
justified, but provides some indication.

Now more than ever, I think policy decisions should be tilted towards 
keeping reasonable the costs of delivered technology. This is important to 
make tools such as the Internet available to more people, whether in 
Pakistan, South Africa, or our own countries. Inventors are entitled to 
recompense if they want it, but not unlimited.

Dave Burstein



Special Correspondent, The Personal Computer Show, WBAI-99.5FM, 8 p.m. 
Wednesdays
Three time winner of Best Radio Show from the Computer Press Association;
Editor,DSL Prime; Co-author with Jennie Bourne of "DSL: A Wiley Tech Brief" 
forthcoming
"The power of the printing press belongs solely to those who own the
presses" A.J. Leibling -
The Internet is the cheapest printing press ever invented
Received on Sunday, 30 September 2001 16:04:03 GMT

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