RAND Licensing is Counterproductive

I am not Developer nor an IT professional.  I am however a user of the
internet and the world wide web (both professionally and personally) who
is concerned about its future development.  In my submission to the
www-patentpolicy-comment process ("Anti-User RAND Licensing Policy") I
expressed my opposition on principle to RAND licensing in W3C
standards.  This was  necessarily short due to there being only hours
left before the original deadline for submissions.

I would now like to examine the practical utility of RAND licensing and
if it offers any advantage to the W3C and the development of web
standards.  Though not an expert in patent law my work as a research
chemist in the pharmaceutical industry sometimes involves the technical
aspects of trying to work round patent issues.

The view has been expressed by W3C staff the the proposed policy is
designed to protect against "submarine" patents.  They recognize that
the RAND licensing and member disclosure policies cannot protect against
submarine patents from non members of the W3C.  They do however fail to
realize that the potential profits arising from RAND licensing could
encourage companies to obtain patents, purely on the basis of
anticipating possible directions in W3C standards development, which
would not be submitted if the current RF only licensing policy remains
in place.

The same argument also applies to members of W3C since they too will be
eligible to obtain RAND royalties and in addition have insider
knowledge.  They will be constrained by the weak disclosure clauses in
the draft proposal - but this will merely provide a basis for scheduling
their "submarines" to launch torpedoes.  In addition if RAND licensing
becomes possible for W3C standards, members of the W3C (who are
commercial for profit companies) are likely insist on RAND licensing
whereas before they may have been prepared to grant RF licenses.

In the Response to Public Comments,
http://www.w3.org/2001/10/patent-response the authors refer to the P3P
case in which the W3C vigorously defended itself and showed that there
was no infringement on the basis of prior art.  How would have RAND
licensing helped in this case?  Are they perhaps suggesting that in
similar cases W3C should agree to a RAND license for technology that is
prior art and let the owners of such patents walk of with the profits,
in order that W3C does not have to go to the effort of exposing
unsubstantiated claims.  Surely not - in future the W3C should continue
to take the same position and again issue a call to the developer
community for prior art.

Finally on the question of disclosure policies in the draft proposal.
They are only of any real use, if an RF licensing only policy is in
place and that there are real consequences or penalties for members who
fail to comply with them.  At the very least when a Working Group issues
a Last Call Working Draft it should be a requirement that every member
of W3C responds with a legally binding statement that falls into one of
the three following categories:

1. Member does not have any patent claims relating to the proposed
standard.
2. Member grants RF licensing rights for any patent claims it has
relating to proposed  standard.
3. Member does have patent claims relating to the proposed standard and
is not prepared to waive royalty rights.

If a member responds under category 3 then its claim should be made
public and a call for prior art made.  If no prior art can be found and
the patent is non obvious a call for proposals that could produce a
relevant standard which circumvents the patent should be made.  If all
attempts to achieve a non infringing standard fail then no standard
should be adopted and it be made public which member is blocking the
standards process.  This is the way to fight "submarine"  patents.

Bill Gunn
Hamilton, Ontario, Canada

Received on Monday, 8 October 2001 23:35:50 UTC