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Feedback on the proposed Evergreen Patent Policy

From: Florian Rivoal <florian@rivoal.net>
Date: Sun, 7 Jul 2019 16:30:33 +0200
Message-Id: <B8F9E7BE-EA92-459D-B4FA-3107A6548283@rivoal.net>
Cc: www-archive@w3.org
To: Mike Champion <Michael.Champion@microsoft.com>, David Singer <singer@apple.com>, Florian Rivoal <florian@rivoal.net>, Elika Etemad <fantasai@inkedblade.net>, Philippe Le Hegaret <plh@w3.org>, Ralph Swick <swick@w3.org>, Wendy Seltzer <wseltzer@w3.org>, donald.deutsch@oracle.com

CCing Don Deutsch in addition to the usual participants about ever*, as this is patent related. I understand that PSIG has a meeting on July 8 (tomorrow). Although this is a very short notice before the meeting, if PSIG is planning to work on the Evergreen during that meeting, this may be useful.

I've reviewed the proposed Evergreen Patent policy (https://www.w3.org/2004/pp/psig/pp-evergreen.html). Even though I have a number of reservations about Evergreen itself, on the Patent Policy side, I think it works out quite nicely overall. However, I did find a number of issues of varying degrees of seriousness. I unsure about how to report issues to PSIG, and I suspect people who've been in the ever* discussion are interested, so for now I'm listing them here. Let me know if github would be more appropriate. CCing www-archive for ease of referencing. I don't think any of these issues is unfixable, though the difficulty of fixing varies.

(Note: I'm looking into setting up a draft Patent Policy for Everblue, and currently feeling that basing it on the Evergreen Patent Policy seems easier than on the classic W3C Patent Policy, but that assumes the issues below are addressed. I'll send a separate mail on that topic.)

The issues are roughly in what I'd consider order of increasing importance (i.e. trival stuff first, serious stuff last):

## Editorial / Phrasing

1. Both "participant" and "evergreen participant" are defined, but only the later is used. I suggest merging. Also, suggested name: Working Group Participant.

2. Circular definitions in 5.1, 5.2, and 5.3: the words "Contribution Licensing Obligations" in 5.2 (resp "Review Draft Licensing Obligations" in 5.3) link to section 5.2 (resp 5.3), which does not contain a definition of these words. The same words in 5.1 also link to 5.2 (resp 5.3), but do look like a definition. These words in 5.1 should be marked up as the definition, and the link in 5.2 (resp 5.3) should be changed to point to that definition.

(Note: this "bug" is shared with the WHATWG IPR Policy)

3. The 5.4 and 5.4.1 sections both ask the question of how often Review Drafts should be published, and provide an answer (6 to 24 months). However but the Evergreen Process document also does (https://w3c.github.io/w3process/evergreen/#evergreen-rec-snapshot) Redundant text is bad, as it can easily lead to contradictions. For example, the Process version says "24 months **if** there are significant changes" (I think it means substantive rather than significant), but the Evergreen Patent Policy has 24 months unconditionally. No strong opinion if that single place should be the Process of the Patent Policy.

4. "Essential Contribution Claims" seems to have broken phrasing that undermines what it is trying to do. compare (emphasis mine):

> "Essential Review Draft Claims" [...] means all claims [...] that would necessarily be infringed by **implementation of** the Review Draft.


> "Essential Contribution Claims" [...] means all claims [...] that would necessarily be infringed by the Contribution, or by combination of the Contribution with the Evergreen Specification [...]

A contribution is a "proposal to make changes to a [...] Specification". It cannot infringe anything. Only **implementations of** the contribution can infringe on patents, but that word is missing from the definition of "Essential Contribution Claims", which by my reading, risks making the whole thing nonsensical.

It should instead say:

> "Essential Contribution Claims"  [...] means all claims [...] that would necessarily be infringed by **implementations of** the Contribution, or by **implementations of** the combination of the Contribution with the Evergreen Specification [...]

(this "bug" is shared with the WHATWG IPR Policy)

## Issues in relation with Rescinding

5. The normative content of an evergreen recommendation can change over time, not only adding new things, but also possibly changing or removing some. Is it correct that new licenses continue to be granted for anything that was once in a Review Draft and that was not excluded, even if it has since been removed (or changed), as long as the spec is not rescinded? This is not necessarily blocking, but I find it a little surprising.

(this "bug" is shared with the WHATWG IPR Policy)

6. Evergreen Recommendations can be retired by turning them into regular RECs and then rescinding them, or by turning them into Notes. Currently, only the former stops new licenses from being granted. That seems problematic: an Evergreen REC may not fulfill the criteria a regular REC, and then cannot be rescinded. 2.8.3 should be changed to:

> If the Evergreen Specification is rescinded by W3C **or republished as a Note**, then no new licenses need be granted but any licenses granted before the Evergreen Specification was rescinded **or republished as a Note** shall remain in effect.

## Gap to close

7. In "2.1. Contribution", "Contribution" is defined as a "proposal to make changes to a particular Evergreen Specification". "Evergreen Specification" is defined not to include "An editor's draft that has never received an indication of Working Group consensus". However, Editor's Drafts are the thing about which WG member make "proposals to make changes". Also, in the Evergreen Process, it is said that "Preliminary Drafts do not necessarily represent a consensus of the Working Group.". So, if a bunch of contributions are made to an new ED, which is then published as an PD (and maybe iterated further upon as ED/PD), which is then published as an Evergreen REC, it could be said that there has never been an indication of Working Group consensus, and therefore that there is no Contribution Licensing Obligations on any of the content (and it may be a long time before there is a Review Draft). That seems bad. I don't think EDs should be excluded, even with a qualifier as currently written. If the ED is being worked on by the working group, I think it is fair to incur licensing obligations when making a contribution, regardless of whether there is yet consensus on the whole document or not. And if the ED started its life outside the WG, the point at which it is brought to the WG is the contribution. Moreover, WGs that do internal incubation generally use ED only for a while, and use the first TR publication as a sign of maturity and of graduating from incubation. We should not put incubating WGs at a disadvantage to incubating CGs.

## Parity with the classic W3C patent policy

8. The classic W3C Patent Policy has a 60 day exclusion period (most of the time, there are also 150 and 90 periods associated with FPWD). The proposed evergreen one changes that to 45 days (except when leaving a group, where it is 60). Is this difference intentional / necessary? I worry it will generate needless controversy.

9. The classic W3C Patent Policy has specific rules for FPWD (and subsequent WDs prior to "Last Call"). The WHATWG has no equivalent to FPWD (or to WDs), and therefore no specific clause in their IPR Policy, but they do have a requirement that a Review Draft be published within 6 months of the Workstream being formed. Evergreen has "Preliminary Drafts", which are equivalent to WDs (and of which there is a first one). Even if an Evergreen REC is published without Preliminary Drafts first, it may be 24 months from the First Everegreen REC before the first Review Draft, during which there's no clarity on the Patent situation. The Contribution Licensing Obligations provides some measure of comfort, but there could still be WG participants who did not contribute but have claims they will eventually exclude, but are keeping initially silent about. The concern is stronger if incubation of that specification happened outside of the Working Group. An Evergreen Patent policy should either:
* restore the relevant clauses from the classic W3C Patent Policy into the Evergreen Patent Policy (pros: reusing the existing rules probably results in easier acceptance by the AC, especially given that we want to apply the improvements of the evergreen/whatwg policy to the REC track as well; cons: the rules are more complex)
* declare the first publication of an Evergreen REC (or even possibly of the first Preliminary Draft?) to be a Review Draft (pros: simple, maximum coverage; cons: more limited exclusion opportunity than in the classic Patent Policy)
* Require a Review Draft within 6 months an evergreen deliverable being included in a charter (pro: same as WHATWG; cons: more complicated than First-Draft=Review-Draft, 6 months without clarity)

This is all I have for now.

Best regards,
Received on Sunday, 7 July 2019 14:30:46 UTC

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