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Objections to proposed patent policy

From: <sinster@ballistictech.net>
Date: Sun, 30 Sep 2001 14:07:49 -0700 (PDT)
Message-Id: <m15nnoT-000yChC@scintilla.balltech.net>
To: www-patentpolicy-comment@w3.org
I have specific objections to the terms of the proposed policy, which I
will attempt to detail below.  However, first I must state my objects to
the policy as a whole.

The use and purpose of patents is fundamentally incompatible with the use
and purpose of standards.  Patents exist to discourage widespread adoption.
Standards exist to encourange widespread adoption.  Never has there been
a successful patent-based standard.  And never will there be.  The best
example of all is PCMCIA: if they had thrown their standard open, rather
than encumbering it with patents, PC Cards would be ubiquitous expansion
and memory device technology in existance.  Instead, it is mired in a tiny
niche of certain classes of portable devices.  The existance of the patent
on GIF (which originally wasn't even conceived for the purpose of being a
standard) is the single factor leading to the creation of PNG.

So long as any portion of a standard requires patented technologies to
implement, the standard as a whole is weakened.

In section 1 of the proposed standard, the claim is made that RAND
licensed patented technologies will be used only when it is not
possible to find RF terms.  If this is a true statement of intent,
then RAND licensed technologies will never be used in W3C standards,
and therefore the entire new proposed policy is meaningless.  Simply
put, it will never be impossible to find unpatented technologies to
fulfull a need that the W3C may have.  The single most important group
contributing to the success of the WWW are freeware and open source
authors.  Yes, there are a lot of commercial players attempting to
make a difference, but the fact of the matter is that none of them are
making an impact.  The old Netscape.  The new Mozilla.  Mosaic.
Apache.  Linux and the *BSDs.  The GIMP.  Perl.  PHP.  Squid.  MySQL.
These are the technologies that created the web and drive its success
forward.  These are the technologies that are making an impact.  The
sheer number of new technologies being developed through open source
projects on SourceForge and other avenues is staggering in its
comprehensiveness.  No matter what realm you may imagine, there are
open source projects answering those questions if they haven't done so
already.  Any licensing terms that require any form of compensation
will permanently prohibit open source projects from producing products
that implement any standard that is so burdened.  This will kill
nearly all development of implementations of that standard.  So if
such a burden appears in a core standard, all of W3C's efforts will
become fruitless: there will no longer be support for W3C's newest
standards, and new standards bodies will come into being to create a
replacement standard that isn't so burdened.  With peripheral
standards, there is never a critical need.  Time is on the W3C's side.
You can comfortably await the emergence of an unburdened proposal to
answer the needs of your the proposed standard.  So on the one hand, it
is effective suicide for the W3C to accept a burdened inclusion in a
standard, and on the other hand, it is always unnecessary for the W3C
to accept a burdened inclusion.

Now to my specific objections.

*** Section 4, paragraph e.  The definition of a RAND license.

This definition, itself, is discriminatory.  Clause 5 doesn't place a
specific monetary cap on the fees required, and therefore leaves the
term "reasonable" open for interpretation.  That becomes a subjective
term.  What is reasonable for one group may not be (and usually won't
be) reasonable to some other group.  Clause 4 names a method by which
patent-holding entities can license each others technologies,
effectively without fee.  These two clauses together create a loophole
by which the holder of the patent burdening a W3C standard may forever
bar any new players from implementing a W3C standard.  All that would
have to be done is to charge an exhorbitant license fee (say a
$100,000 flat fee -- a fee that is not unusual in established patent
licensing practice) and allow the "patent swap" of clause 4 to take
effect.  Entities which own patents that encumber W3C standards would
be able to license each other's technologies for free, and other
entities would be forever prohibited from implementing the burdened
W3C standard.

Further, if the clause 5 fee is a per-end-user fee, then open source
projects will be incapable of meeting the requirements of the fee or
audit requirements (clause 6), and therefore will be prohibited from
implementing a burdened W3C standard.

Clause 3 provides a further loophole.  A patent holder, contributing
his patent to a W3C standard under RAND terms, my choose to license
only a minimal set of functionality under the RAND terms.  A set small
enough to be effectively useless.  The W3C has, in the past, issued
standards whose required functionality for compliance is so small as
to be functionless.  There is sufficient reason to believe that the
practice will continue.  If the new patent policy comes into effect,
then the W3C will essentially be requiring that implementors pay
exhorbitant licensing fees or be left with an implementation which,
while compliant with the standard, is nevertheless nonfunctional.

*** Section 4, paragraph f.  The definition of a RF license.

Clause 1 of this definition allows an RF license to exist whose only
accepted compensation is reciprocal licensing as listed in 4(e)4.
So which such a license is, in truth, royalty free, it is hopelessly
encumbered, being available only to people who possess patents that
encumber other W3C standards.

*** Section 7.2.  The definition of Good Faith Disclosure standards.

This definition fails to describe a good faith effort.  At a bare
minimum, an active patent search should be required on the part of
a claimant.  By preference, a claimant should be burdened with the
responsibility of disclosing the burdening patent claim in a timely
manner or of abandoning the patent.  The truth of corporate life is
that requests for disclosure circulated "through the same channels 
as any other W3C material" will be wholly ignored by those people
who are in a position to realize that a company's patents burden
that proposed standard.  So that level of "good faith" is ineffective
at best, and very abusable at worst.

The second sentence in this section is unnecessary.  Patents are,
by law, disclosures.  So patents themselves cannot be subject to
NDAs.  A claim by the holder of a patent, to the effect that such
a patent will or might burden a proposed standard comes under patent
disclosure law and therefore also cannot be subject to NDAs.  Therefore,
not only should the sentence exempting such disclosure be removed, it
should be reversed in sense to specifically require disclosure of
third party patents that are known to the member.

*** Section 8.  Member Patent Licensing Commitments.

To boil down this section, it reads: "contributors must license
burdening patents under RAND terms unless they say that they won't
license them under RAND terms."  Well, that's just silly.  Effectively,
this single section renders the entire patent policy pointless.  It
means that a contributor can merely say that they don't want to
license under RAND terms, and then they won't have to -- but the
refusal to license under RAND terms doesn't block the burdened
standard recommendation from moving forward, which it certainly
should do.

*** Section 8.3.  Term of the license obligation.

This is the only part of the entire policy that attempts to legally
bind any member.  However, it fails to do so.  Simply put, the text
exists in a /policy statement/, and not a /binding contract/.  Policy
statements have no force in law.  They do not bind the drafters of
the policy.  They do not bind the implementers of the policy.  And
they do not bind the general membership.  You could attempt to
implement this as an amendment to each member's existing membership
agreement with W3C and incorporate it into all future membership
agreements; but doing so would require unanimous approval of all
present members.  Contracts cannot be amended unilaterally, regardless
whatever the contract may say to the contrary.

*** In summation

I urge you to reject this proposal in its entirety, and to replace it
with a single, concise statement:

"Under no circumstances will the W3C include a patent-burdened
technology in any recommendation or standard unless that patent has
been wholly abandoned.  Any W3C member possessing a patent that would
appear to burden a W3C recommendation must disclose that patent
in sufficient time that the recommendation may be rejected or
amended to exclude the burdened technology.  Failure to disclose
such a patent constitutes a statement on the part of the member
that they have abandoned the patent globally."

-- 
Jon Paul Nollmann                                 sinster@ballistictech.net
Unsolicited commercial email will be archived at $1/byte/day.
When cryptography is outlawed, only outlaws iernl 8ujke, ]jbsmwuns q*ud
                                                              Howie Goodell
Received on Sunday, 30 September 2001 17:08:08 GMT

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