- From: Bill Gunn <billgunn@hwcn.org>
- Date: Mon, 08 Oct 2001 23:37:45 -0400
- To: www-patentpolicy-comment@w3.org
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