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Comments on W3C Royalty-Free Patent Policy

From: Howard B. Golden <hgolden@socal.rr.com>
Date: Wed, 2 Apr 2003 20:40:06 -0800
To: www-patentpolicy-comment@w3.org
Message-Id: <200304022040.06028.hgolden@socal.rr.com>

To the W3C Advisory Committee and interested Web users,

Ultimately, the success or failure of W3C rests on its utility to the users of 
the Web. The W3C must always keep the interests of users in mind, while still 
serving the needs of its membership. I am concerned that in developing the 
proposed W3C Patent Policy, W3C has lost sight of its need to maintain its 
legitimacy in the eyes of Web users.

As currently proposed, the Patent Policy will weaken the sense of trust that 
Web users have in W3C Recommendations. As other commentators have stated, I 
believe that it is likely that W3C Recommendations will be diminished in 
their role as setting standards for the Web.

Therefore, I propose the following alterations to the approach in the proposed 
Patent Policy. I believe that these alterations will increase the 
transparency of the W3C process, thereby ensuring the continued esteem in 
which users hold W3C Recommendations.

BASIC PRINCIPLE

The success of the development of the Linux kernel, Apache web server, and 
various software developed by the Free Software Foundation, to cite only some 
examples, shows the power of individual developers and small groups to 
accomplish enormous goals when they work together, especially in the context 
of the Internet. Therefore, it is not reasonable to look at the continuing 
development of Web standards as being controllable by a small group of large 
organizations (i.e., W3C members). Frankly, the membership of W3C is 
attempting to direct the future in ways that benefit large organizations at 
the expense of individuals and small developers, who generally aren't able to 
devote significant time to W3C working groups.

FULL DISCLOSURE

The concept of "Royalty Free" (RF) in the proposed Patent Policy is artfully 
written to be meaningful to large organizations, but isn't well suited to 
individuals and small groups. Without specifically endorsing the exact 
language of the Free Software Foundation, I generally believe that all 
disclosure and licensing requirements should be based on the concept of 
Royalty Free meaning a much more open licensing obligation. Then, if the 
member or invited expert is unwilling to meet this more open Royalty Free 
license, it would be required to disclose that exclusion. This would make it 
clear to individuals and small groups what limits are being proposed.

SPECIFIC COMMENTS ON THE POLICY

** Section 5:

The concept of Royalty Free (and not requiring disclosure) would be a much 
more open license. Therefore, the following should NOT be permitted:

. any limit on assignment or sublicensing of rights

. #3 (limitation to implementations of Recommendation and what is required by 
it)

. #7 (any "reasonable" and "customary" terms, except those specifically 
delineated in the Policy)

. #9 (any limitation of license term)

. #10 (any ability to limit granting licenses in the event the Recommendation 
is rescinded)

Again, such licenses would be permitted IF DISCLOSED as in Section 6, but 
would not be considered Royalty Free for the purposes of eliminating 
disclosure.

** Section 6.4:

It isn't clear to me if disclosure statements are intended to be public. This 
is essential, and the publication must be contemporaneous with disclosure.

** Section 6.7:

The limitation on disclosing third party patents must trump pre-existing 
non-disclosure obligations. I don't know how to write this requirement 
concisely, since it may require the resignation of the member from the 
working group.

** Section 6.9:

I don't understand why disclosure obligation terminates whe the Recommendation 
is published. It seems to me that it should continue thereafter.

** Section 8.1:

Existence of a non-infringing alternative should be judged based on the state 
of the art at each time a potential disclosure is required.

** Section 8.2:

In item 2, I don't understand the limitation of enabling technologies from 
Essential Claims. If and enabling technology is required to implement the 
normative portion of a Recommendation, then an Essential Claim should include 
any claim that is necessarily infringed to implement the enabling technology. 
Similarly, the exclusion of claims on incorporated-by-reference technology is 
not helpful to potential users of the Recommendation.

Please feel free to contact me if any of the above comments is unclear.

SUMMARY

Only with full disclosure will W3C Recommendations have the trust of Web 
users. With the above changes, the Patent Policy will provide the disclosure 
to ensure that users can make an informed decision about whether to adopt a 
Recommendation. Any lesser disclosure will erode the stature of W3C.

Sincerely,

Howard B. Golden
Northridge, California, USA
Received on Wednesday, 2 April 2003 23:44:12 GMT

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