- From: Steve Waldman <swaldman@mchange.com>
- Date: Fri, 05 Oct 2001 21:47:41 +0200
- To: www-patentpolicy-comment@w3.org
The following is a proposed alternative to the W3C PPF Working Draft that attempts to meet the clarity and excellence goals of the current proposal without the sacrifice of openness that "RAND" licensing would entail. It accomplishes this by taking a carrot-and-stick approach to encouarging patent holders to license their technology on a royalty-free basis: 1) Retain the disclosure requirements of the current draft proposal, basically as they are. 2) Define research into the patent status of essential technologies as one of a W3C Working Group's duties, in order to discover potential "submarine patents" held by entities other than members or contributors. 3) Throughout each standards process, identify all essential patents. At first, presume the validity and enforceability of all patents and interpret the claims of each patent as broadly as possible. 4) For each required patent, ask the patent-holder whether it would be willing to license the patent on a royalty-free basis to any and all for the purpose of implementing the W3C standard. Acknowledge patent-holders who agree to so license their technology prominently in a new, separate section of all W3C standards. Request, but don't require, that implementers also prominently acknowledge the licensor's technology. Do not provide the licensor with any sort of "opt-out" clause. 5) If one or more patent-holders refuse to license the technology on a royalty-free basis, convene a Patent Advisory Group whose purpose, unlike in the current proposal, _is_ to assess the essentiality of the patents at issue and to develop legal opinions about their validity and enforceability. The PAG may conduct whatever researches it deems necessary, including without limitation, making widespread calls for prior art. At this point in the process, the PAG will interpret patent claims as narrowly as it believes can be legally sustained. 6) If the PAG determines that, in its opinion, any essential patents for which royalty-free licensing has not been obtained are not valid or enforceable, the W3C will publish PAG's reasoning, carefully disclaiming all liability. (W3C should encourage independent analysis by potential implementers, reminding readers that the PAG's opinion is not a court's, and that if it is held to be erroneous implementors may still be subject to liability for infringement.) At this point, the standards process should continue without further regard or acknowledgement of the unnecessary or putatively invalid patent. 7) If the PAG determines that, in its opinion, there are patents for which royalty-free licensing cannot be obtained that are both essential and valid, the technology at issue must be deemed proprietary and therefore not subject to W3C standardization. The standards process then halts, and W3C issues a press release explaining why the process has come to an unsuccessful end. 8) Should a "submarine patent" surface during the lifetime of a W3C standard, it should be considered a "required patent" in step 4 above, and the process should start from there. The patent-holder may opt to license the patent on a royalty-free basis, in exchange for acknowledgement and an acceptance by W3C of the broadly-construed patent's validity on face. If they are unwilling, they may face a critical review. If a PAG determines that the submarine patent is unnecessory or invalid, the W3C will simply publish its reasoning and ignore the patent-holder. If it determines that the newly- surfaced patent is essential and valid, it will formally rescind the standard, issuing a press release explaining and advising, current implementors and users of their potential liability for infringement. respectfully, Steve Waldman
Received on Friday, 5 October 2001 14:46:55 UTC