- From: Alisdair Odd <alisdairodd@home.com>
- Date: Thu, 11 Oct 2001 00:22:53 -0700
- To: <www-patentpolicy-comment@w3.org>
To w3c.org and in particular the authors of the patent policy proposal This letter is in responce to your proposal to introduce a formal patent policy for the w3c.org to adopt. No reasonable person would dispute that web technology has become more commercially critical and the impact of software and business process patents are felt more strongly in the Web development arena, it is necessary to adopt a comprehensive policy and process for addressing the relationship between the open technical recommendations recommended by W3C and patent claims of both W3C Members and others. What this means is that the W3C cannot avoid taking a position on software patents. Members of the W3C consortium wish to promote their software and business processes as standards, however they also wish to protect their investments in their development with patents and benifit financially from their issuance. You yourselves state that until now the world wide web has been an "unprecedented burst of entrepreneurial energy and global cooperation" and "Both the competitive forces which have lead to innovative technology, and the cooperative spirit which has produced global interoperability standards at an extremely rapid pace have occurred, until very recently, in a market environment without any significant intellectual property licensing requirements". The PPWG then states further why a patent policy is becoming necessary namely the web is converging with other technological sectors where patents are a tradition, more software patents are being issued (in those contries that recongise them), other respected patent bodies have barries to acceptance of standards with onerous licensing requirements, and software patents are controversial. The view that the increased role of patents in the W3C standards setting the "industry is maturing" is specious analogy of the software industry with the telecommunications and consumer electronics industries, which are fundamentally different and obey different laws economic and physical let alone judicial. That "Others view the rise of patents in the Web standards landscape with concern" is a euphemism, this is the direst threat the web has faced, perhaps the only real threat. The essence of your consensus is the same "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." Also the following are good recommendations "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. 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". You wrote (free)"Market dynamics that have lead to rapid innovation, worldwide proliferation of standards, and a high degree of entrepreneurial development may be threatened by barriers posed by even reasonable licensing terms. In this view, the highly decentralized Web industry structure is so unlike the industries in which patents play a large role, that the reliance on licensing models from those industries is considered inappropriate", incorporating patents into this market will introduce less competition by denying those corporations or other entities that cannot afford the licensing terms of the patented standards entry. So in essence you wish to break what is not broken for no reason but the profit of some members of the W3C. The spectre of patent encumbered standards that limit the openess and universal accessibility of the web are the motives for the following, "Recommendations addressing higher-level services toward the application layer may have a higher tolerance for RAND terms" and "Working Group flexibility: One patent licensing framework may not be appropriate to every W3C Working Group. Therefore, Working Groups should have flexibility to specify minimum licensing terms as part of their work. These intellectual property rights requirements should then become the basis for Advisory Committee and Director review of the resulting specification." In essence the idea is that some small technologies peripheral to the core of the web can use standards that are patented and require royalties, and that working groups should have most of the control on the patent policy for any given standards decision. What W3C standard is not central to the web? There is none that would be of interest to your consortium by your own mandate. Also if you don't have a firm standard policy to begin with, why have one at all? There must be a set of criteria for standars involving patents that is used or the policy is worthless in directing decisions by working groups. Not being a patent lawyer, I will comment on what I consider to be the most egregious parts of the proposed policy. What is most objectionable about the rand licensing mode are E)5 and e)4, they should not even be considered. The requirement to implement a web standard that requires fees or royalties is both unreasonable and discriminatory! No small company could begin to compete with a well establish corporation with rand patents on web standards, it create a barrier of entry to a free market, and can create artificial monopolies. Also a proposed standards rand license that is "conditioned on a grant of a reciprocal RAND License to all Essential Claims owned or controlled by the licensee and its Affiliates" would entangle all further standards that involved the proposed rand standard with the discriminatory fees/royalties compounding an initially small problem! Hence e)4 is unacceptable in its entirety. My recommendation is make it policy to make all licenses royalty free. As for most of the rest of the document as far as I understand it, it has some good recommendations. Full disclosure is a good thing. So to sum up, I would recommend you to not consider a rand license at all but to make it policy to only accept royalty free standards. If your members wish to make profits off of patents let them patent their implementations of royalty free standards, and still compete with everyone on the world wide web. A word of warning, if your consortium goes ahead with a rand mode license policy, which you have admitted has not so far been necessary (I am aware of no standard proposed that required using the rand mode, so why consider it at all?) then your standards body will quickly become a pariah among web developpers. You would be betraying all the users of the web in favor of whoring yourselves to the profit a plutocracy of large corporations your "members". As a preemptive measure, in good faith for all the developers, users, and companies on the web who aren't your "members", I would recommend opening up your membership to everyone, individuals and corporations, for free. If you don't do either of these likely a real standards body that represents the individuals and companies you threaten to marginalise will be created, and they will continue the tradition of a free unencumbered web, where the contributions of all are accepted on merit not by virtue of having specious patents, or enough money. Personally, and I doubt I am alone, i think the real potential of the web, to improve the lot of mankind, will be seen from that organisation, hopefully you will be it if you make the right decisions. If not I hope, and will work, to make you reverse your decisions or become an irrelevent memory along the road to a free, open and universal global web. Alisdair Odd
Received on Thursday, 11 October 2001 02:25:44 UTC