RAND RFPC

Responses to http://www.w3.org/TR/2001/WD-patent-policy-20010816/ extracts 
(preceded by "> ":

>As Web technology has become more commercially critical

as a body whose actions directly impact the entire www present and potential 
userbase

- ie six billion people's interests

- please be careful to avoid showing favour to minority interests at the 
ezxpense of the overwhelming majority. One approach could be for commerce 
and business have an equal voice, directly proportional to their respective 
number of employees or a single vote as an additional entity (ie all staff 
have their own equal value/interest and each business gets a vote equivalent 
to one person, regardless of its economic size - democracy over 
dictatorship).

Note that www was not invented by or even particularly for commercial use, 
rather commerce has been provided with the same access as any individual 
person or community might choose to exercise.

From its inception, www has been zero cost to use (internet access taken as 
a given, ie once online there is no direct payperview element, 
free2cyberspace like free2air TV).

In order to maintain this accessibility for all, it is self evident that 
there be zero ongoing protocol costs otherwise, eg where key protocols are 
subject to any third-party Intellectual Property royalties, the current open 
access is permanently compromised.

Fundamentally, any royalties imposed on the ubiquitous www are simply 
taxation upon the free speech of humanity

- w3c represents the interests of every single person alive and yet to be 
born, not the interests of capital alone, yours is a grave responsibility, 
please think through the implications of such basic and key changes clearly 
and exhaustively.

Commerce benefits from www and if so to choose is perfectly able to offer 
proprietory or paid access via www interface eg porn and online gambling and 
within those intranet offshoots of www then any appropriate patented 
techno-whizz-bangery can be offered to those willing to pay for the 
privilege - just keep the core www's default standards (a fundamental common 
denominator of primary accessibility) fully and freely open to all.)

>and the impact of software and business process patents are felt more 
>strongly in the Web development arena, W3C believes

again it is vital to differentiate between the core www and the private and 
proprietory gateways and subwebs that for-profit www users

(note again, a small subset of the entire www userbase and also note that 
users from www's inception are senders and receivers, broadcasters and 
viewers in equal measure.. www is not TV or perhaps is the two-way 
development of one-way TV.

>At the same time, many Members invest significant research effort in the 
>development of their own intellectual property portfolios

again, why should some members be afforded the right to tax others? whether 
members choose to invest or not is their business and is no reason why the 
rest of www should have to pay for such an investment! If any member feels 
they have valuable IP that would improve the www then, by all means offer a 
proprietory, for-profit subweb which can accessed by portals from the core 
www

- let the market determine the value by each www user who chooses paying 
directly and transparently to use said IP;

why should the entire www have to provide payment by default?

If the IP is so good, then the percentage of content available on the core, 
public www will be seen to reduce and the proprietory subweb which offers 
the IP benefits will see increasing traffic and growing revenue streams;

conversely, if the www userbase places no value on the IP, then the subweb 
will attract no traffic; again with a built-in royalty system, the IP would 
impose a charge on all www for something with demonstrably no value...

hardly a desirable, fair or equitable outcome from any perspective, except 
from the IP royalty claimant's viewpoint I suppose :)


>Convergence: The Web had its origins in the personal computer software 
>industry, where patents had seldom been a factor in development dynamics. 
>However, as the Web comes into contact with the telecommunications, 
>broadcast media and consumer electronics industries, the tradition of 
>patenting technology from those industries will likely be carried over to 
>the Web.

so carry over the "tradition" via proprietory subweb annexes of the core 
public www; again why should eg broadcast media or telecommunication 
industries demand payment from the core www by misapplying their traditional 
business models to an entirely different tradition, namely www?

>Rise in patent issuance: Patent offices, led by the U.S. PTO, are issuing 
>patents, especially in the software sector, at record rates.

what is the relevance or logic in this point?
ie is w3c saying that because the patent industry is expanding then www 
should assist that expansion?
- there is nothing here inevitable and w3c has real choices IMHO.


>Experience of Internet-related standards bodies: A number of standards 
>bodies including W3C, IETF, the WAP Forum, and others, have encountered 
>potential barriers to acceptance of standards because of licensing 
>requirements perceived as onerous.

surely this point suggests that the inclusion of patents and other 
royalty-related technology into any open standards system is fraught with 
issues and barriers

- why get into the "onerous licensing requirements" scenario in the first 
place?


>Popularity of business method patents: Beginning with the State Street 
>decision in the United States and continuing through high-
>profile litigation between Amazon.com and Barnesandnoble.com, business 
>method patents have become increasingly significant factor in the ecommerce 
>marketplace.

again, the ecommerce marketplace is a subweb of the entire www, most users 
(in terms of individual eyeball-hours) are not buying they are browsing, 
therefore why should the entire www pay for this subweb activity?


>Importance of interoperability for core infrastructure, lower down the 
>stack: Preservation of interoperability and global consensus on core Web 
>infrastructure is of critical importance. So it is especially important 
>that the Recommendations covering lower-layer infrastructure be 
>implementable on an RF basis. Recommendations addressing higher-level 
>services toward the application layer may have a higher tolerance for RAND 
>terms.

makes sense and risks definition creep in its current frankly vague and 
wooly) form of "towards app layer" tolerance... still no compelling 
reasoning as to why www or w3c should be required to have any tolerance for 
RAND terms.

>Better disclosure: A clear process, to which Members are committed and/or 
>bound to ensure better disclosure of essential patents as a condition of 
>Membership, is vital.

agreed it is vital, so why not an upfront waiver/disclaimer for all patents 
to be RF if used in final standard definition, as a condition of Membership
- ie a member which attempts through ignorance or design to steer w3c 
towards their proprietory technology will gain no royalty benefit through so 
doing, at penalty of withdrawal of any affected standard and explusion of 
member concerned?


>Access for general public (not just Members): Licensing terms for essential 
>technology should be available on a non-discriminatory basis to W3C Members 
>and non-Members alike.

and what better way to demonstrate and deliver non-discrim than by demanding 
all standards are RF without exception?

>Working Group flexibility: One patent licensing framework may not be 
>appropriate to every W3C Working Group.

again where is the reasoning that any working group needs any licensing 
framework beyond RF?

what if Tim Berners-Lee had patented www and tried to charge royalties on 
every http request and response? I suspect that there would be no www on the 
scale it is today...
If the originator made no claims then why exactly should those who come 
after be able to impose royalties on www whilst themselves benefitting from 
the open RF nature of www as it exists today

when w3c speaks of "reasonable and non-discriminatory..." unless and until 
everyone in the world has equal access to the money to pay such fees or 
royalties then RAND is and will remain discriminatory by its very nature - 
is such exclusion the desire or remit of w3c?

from your Ack section:

>The participants of the Patent Policy Working Group who wrote this document 
>were: Jean-François Abramatic (W3C), Chuck Adams (IBM), Martin Ashton 
>(Reuters, Ltd.), Carl Cargill (Sun Microsystems), Wanda Cox (Apple 
>Computer), W. Mike Deese (Microsoft), Mark DeLuca (Woodcock Washburn Kurtz 
>Mackiewicz & Norris LLP for Microsoft), Mari GEORGES (ILOG S.A.), Toon 
>Groenendaal (Philips Electronics), Michele Herman (Microsoft), Ian Jacobs 
>(W3C), Glen Johnson (Nortel Networks), Alan Kotok (W3C), Steve Nunn (The 
>Open Group), Scott K. Peterson (Hewlett-Packard), Tony E. Piotrowski 
>(Philips Electronics), Barry Rein (Pennie & Edmonds for W3C), Gib Ritenour 
>(Nortel Networks), Daniel Weitzner (W3C), and Helene Plotka Workman (Apple 
>Computer).


it would appear that 14 out of 20 members of PPWG are representatives of 
business interests which derive significant current income from royalties 
and may thus be anticipated to wish to extend a similar tax regime upon all 
www userbase - ie is the majority of this WG even remotely representative of 
www as a whole?

why does w3c propose or presume to take upon itself the role of publishing 
"standards" "higher up the stack" in the first place?
ie what is w3c scope limit of remit... I trust w3c is aware of the risks of 
empire-building?

Looking back over the detailed exerpts and their respective responses, 
certain key issues arise, in summary as follows:

0 - It represents poor www policy, advancing a narrow corporate interest 
against the interests of the www at large.

1 - the current success of www is built directly upon RF and open source 
foundations, if IP had been an integral part of www from the outset then I 
suggest that www would resemble a closed web eg compuserve or Ms .net 
initiative ie protected IP has never been a part of the growth and 
development of www hence it behoves w3c to demonstrate how core standards 
development from here onwards would benefit the entire www community by the 
impost of royalty taxation

ie what is the aditional benefit or, put another way, how does www lose out 
exactly by excluding IP from its standardisation function?

2 - w3c has failed IMHO to demonstrate the need or desirability of changing 
its tradition since inception in this regard.

3 - if any IP licencee wishes to levy royalties let them do so outside the 
core www standards ie as a discrete addition to www not as a blanket 
incorporation into www.

As the proposed policy includes proposals such as:

>a requirement for disclosure provisions (Section 7); a procedure for 
>launching new standards development activities as Royalty-Free Licensing 
>Mode activities (sections 4 and 5); a procedure for launching new standards 
>development activities as Reasonable and Non-Discriminatory (RAND) 
>Licensing Mode activities (sections 4 and 5);

>W3C would like to know if your opposition to or support for the policy 
>refers to all three of these proposals, or just some of them.

Absolutely in agreement wrt disclosure as a prerequisite and would add that 
any royalty claim will auto-exclude such patented material from any w3c 
standards if licencee elects not to offer RF waiver.

RF procedure is fine, RAND is a non starter

so in summary - agreement wrt disclosure, open source and RF licencing and 
no place, not demonstrated anyhow, for royalties of any kind in w3c 
standards ever (RAND or otherwise)

Whilst it is understandable that w3c wishes to strike a balance between 
competing interests, certain core items are manadatory and not subject to 
such relativism
eg if two parties hold the respective positions that capital punishment is 
entirely desirable on the one hand and entirely indefensible on the other 
then the process a balance striking is a logically unsound approach ie a 
defendant cannot be half guilty, half dead or a woman half pregnant!

best regards,

Guy Jarvis

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Received on Friday, 5 October 2001 09:55:38 UTC