- From: James Green <jg@cyberstorm.demon.co.uk>
- Date: 10 Oct 2001 12:02:30 +0100
- To: www-patentpolicy-comment@w3.org
I have read the proposal on the Patent Policy in part due to 1) time constraints 2) the wording of the text is clearly intended for those familiar with the U.S. legal system and otherwise with a high IQ. For the general public, even those such as myself with Bachelors degrees in Computer Science, the proposal is very large mouthful. Firstly let me say that this proposal does have it's merits. The very fact that you do recognise the potential impact that business patents have on developing standards is good news, and that you intend to have WG Members acknowledge potential patents of their own in working on standards is a good move. There are, however, a number of problems with both the proposal and idea that you seek comments on. Before I go into this matter further, you should be aware that the method used to gain comments on this proposal were holy inadequate. This is a far-reaching proposal that anyone can see warrants a great deal of user though and comment. You announced this proposal as part of any other W3C announcements on your www.w3.org homepage and it was gone within days; only links to the proposal would have given any idea that the proposal even existed; the public ultimately views such methodology as "underhand" and "deliberately quietened." FAQs produced do not go far enough to assist people in understanding this matter, the W3C should have made this proposal announcment visible at the top of it's homepage throughout the commenting period and announced it to relevant community sites, whether you believed susbstancial intelligence responses were likely to come out of it or not. The proposal itself sets many alarm bells sounding. The fact that it isn't clear how this affects existing standards is enough to warrant fear in the community. The first question is likely that of "Can HTML be patented?" The answer is not clear to me but by guess I would say no. Of far less certainty is that of SVG, which is of course troublesome. But as I do not have knowledge of that matter, I will no no further. Significantly, the proposal acts to leverage commercial potential in web standards. It will permit Members to invisage commercial attractiveness and to seek potential financial rewards from participation in creating a W3C standard. This goes against the W3C's core values of creating standards that everyone can both implement and adhere to. If a standard is published, then extended (as has been done many times in the past) it is already shrouded in problems. With this proposal, the matter of extension becomes something more commercial. For example, if a standard were to be issued under RAND licensing terms, would extensions of the standard be prohibited except by Members of the WG? This is not clear, but it is obvious that patent-holding Members would seek to prohibit use of the standard such that they maintain a hold on their patent-earning contribution. The very fact that Members come together to form a standard should not be something that Members can think about in commercial gain. If that was to become the case, a Member may easily bend a standard towards using it's own patents, and this may not be immediately seen by the community or indeed other Members. The legality of RAND licensing is of course untested, and as we know from painful historical cases, loopholes and undesired effects can be found in almost all legal terms that an organisation wealthy enough to participate in a WG will undoubtably work to capitalise upon. Should the W3C permit RAND licensing, as reportedly already been the case, a serious rift will emerge between those wanting a truely open organisation working solely to develop and encourage adoption of community standards, and the W3C. Whether the W3C actually permits RAND licensing that makes it difficult, if not impossible, for open source software to implement a standard or not, the perception is still there, and as a body that has to market adoption of clear standards (not something the W3C is known for) this perception would be a major ball-and-chain. Standards that have RAND clauses may also inhibit the work of the W3C. For example, should a simple and yet very powerful standard be development under RAND licensing which uses a technology that is encumbered by a far-reaching patent, development of the standard into future versions would undoubtedly be restricted if not by the Member holding the patent (and therefore interested in maintaining it's patented technology in the standard) but by the W3C not wanting to go down a path potentially expecting a costly lawsuit. If, as has been the case before, an open source organisation or individual were to produce an RAND-licensed implementation without seeking a license from the patent holder(s) simply because they are incapable of paying the royality fee, doesn't this make a mockery of the RAND terms itself? Certainly, violations of such standards licensing are inevitable because the W3C must be seen as promoting a free web, such violations would put the W3C organisation and it's Members under much public scrutiny, as would a company leveraging it's commercial might against a public community. Also, if a new standard was placed under RAND licensing terms, what woudl the effect be on ideas for other standards that require technologies which contain parts similar to, if not identical to, the RAND-licensed standard? Should the two be separated such that one is under an RF license, but implementation of it requires implementation of the RAND-licensed standard, which would almost certainly restrict implementations of the RF-licensed standard. All in all, this policy opens the door for huge ramifications and commercial gain a the expense not only of the public, but the W3C itself. If a standard is intended for adoption by implementors and promoted by the W3C it should automatically be placed under a non-restricted RF license without question. I would therefore urge that the W3C reject this patent policy and indeed follow a suggested given by the Mozilla.org response that at the time of forming of a new standard proposal, all Members of the WG be forced to waive any royality rights that any patents they may hold could be used in implementation or use of the standard. Regards, James Green
Received on Wednesday, 10 October 2001 07:02:36 UTC