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The concept of RAND is in itself discriminatory

From: James Young <marm@marm.org.uk>
Date: Mon, 1 Oct 2001 03:30:16 +0100
To: www-patentpolicy-comment@w3.org
Message-Id: <E15nspL-0006qY-00@gadolinium.btinternet.com>
Sirs,

The proposed changes to the W3C's patent policy are poorly thought-out 
and ill-advised.  I very strongly urge the W3C NOT to recommend these 
changes.

My major concern with the new patent policy is the concept of 
'Reasonable And Non-Discriminatory' (RAND) licenses of existing and 
pending patents covering technologies that may be incorporated into W3C 
standards.  In particular, the section of the definition that states 
that 

"[RAND licenses] may be conditioned on payment of reasonable, 
non-discriminatory royalties or fees;"

( Section 4e, paragraph 5 of the W3C Working Draft on Patent Policy, 
http://www.w3.org/TR/2001/WD-patent-policy-20010816/ )

This statement is in itself discriminatory, as it requires that 
implementors of W3C standards that use patents under a RAND license 
must be funded and in a position to pay these royalties.

Some of the world's most important (and, I should add, most 
standards-compliant) implementors of existing W3C standards are not in 
a position to pay these royalties, as they are non-profit 
organisations, often with no actual funding to speak of at all, that 
allow free access to their software, much like the W3C does with their 
reference implementations (e.g. Jigsaw and Amaya).  Examples of such 
groups include, but are not limited to:

The Mozilla Organisation
The KDE Project (developers of the popular Konqueror browser)
The Apache Software Foundation
The expat team (expat is a widely-used XML parser)

It should be noted that certain W3C members base their own 
implementations of W3C standards on these freely-available 
applications, for instance AOL base their Netscape browser on Mozilla, 
and IBM base their IBM Web Server software on the work of the Apache 
team.

Another area of concern regarding the definition of licensing modes is 
this:

With Royalty-Free licensing of patents, may licensors require that 
implementors register with them before developing software covered by 
that patent?

Allowing registration would allow the licensor to tie the implementor 
up in red tape for as long as they wish, effectively preventing the 
implementor from implementing a W3C standard.  This needs clarification.

Once again, I urge the W3C to REJECT this recommendation as it stands.  
To allow this to become the W3C policy would both stifle innovation 
amongst non-profit organisations writing software to W3C standards, and 
seriously harm the W3C's credibility as an independent standards body.

Tim Berners-Lee was once the author of key free Web software, and he 
had no resources to pay patent royalties.  Does the W3C now wish to 
stifle his kind of innovation?

-- 
marm
Received on Sunday, 30 September 2001 22:29:07 GMT

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