- From: John L. Males <software_iq@TheOffice.net>
- Date: Thu, 11 Oct 2001 23:47:39 -0500
- To: <www-patentpolicy-comment@w3.org>
- CC: "Eric S. Raymond" <esr@snark.thyrsus.com>, "TopXML - Mark Wilson" <markwilson@topxml.com>, Myddrin <robknapp@nc.rr.com>, editor@lwn.net
-----BEGIN PGP SIGNED MESSAGE----- Hash: SHA1 As an IT Professional I would like to offer my comments to the W3C's proposed W3C (RAND) Patent Policy. As it is obvious I am not a "known" professional in the internet world, I think it is important for me to briefly introduce myself to the W3C. That way the W3C has a context and perspective of the comments and thoughts I am expressing. I am a Software QA/Testing Specialist. That means what I do is ensure the "software" "meets the specifications". That also frequently entails providing comment on areas of concern regarding the software and/or its specification. My interest in the W3C's proposed policy is as a technically oriented User. I have made a great deal of effort to research and then finally compose this response. I really needed more time to make my response. I do thank the W3C for extending the deadline to 11 October 2001 for comments to be accepted for consideration. I could not make a reasonable response after learning about the proposed (RAND) Patent Policy 29 September 2001 via Linux Today. My apologies if there are typo errors or the odd gap in my articulation of my thoughts. I did not have as much time as I needed to properly proof read my response. If there is anything that needs to be clarified please respond so requesting. If I find such errors I trust it is acceptable for me to indicate the correction(s) via the mailing list. Executive Summary ***************** The currently proposed W3C (RAND) Patent Policy: i) Failed to provide proper notification to the "community" and as a consequence effectively reduced the comment period to 13 days instead of the 42 days allotted. ii) Fails to acknowledge the internet and its associated standards are public property and therefore require public standards. iii) Provides patent owners with a number of "discriminatory" advantages and/or conflicts of interest iv) Discriminates against the end users by creating islands where the patent related standards can be implemented in open or closed source models with no license/royalty fee requirement. v) Creates a breeding ground for "approved standards" to be suspect of W3C conflict of interest(s). vi) Opens the door to legal action of the W3C, W3C staff, and/or W3C members for standards encumbered with patents. vii) Fails to consider the varied legal geography that can render different implementation levels of the proposed (RAND) Patent Policy, therefore afford different implementations of the proposed Policy ergo discrimination. viii) Provides clear incentive for a new standards body to be created to ensure the internet and its associated standards are public property. My position on the currently proposed W3C (RAND) Patent Policy in order of preference: A) I oppose any W3C approved W3C standard that incorporates any existing patent. B) I oppose any license/royalty fee due for a W3C "approved standard". Background ********** My interest in the W3C's proposed policy is as a technically oriented User who has been through a few closed source/propriety based OS's and a number of associated applications on these systems bought and paid for. I have not been happy with the "Major" elements of such software for a number of solid reasons both technically and vendor practices/policies over more than 10 years. I have made a choice to go the Open Software route, software with licenses that hold a collective sprit by the licenses referenced via: http://www.opensource.org/licenses/ I made this decision based on some key requirements. One of those requirements is long term usage facilitated by the standards and code being open for anyone to fix, improve, or make reference to in building programs/interfaces that allow interaction of software. I am almost fully converted onto an OSS system. A few OSS solutions still have to be sourced. The decision I made took into consideration a number of historical examples that exist in this very young Internet and bit older, early teenager IT industry with closed and/or patented technology. I am therefore motivated to make my comments to the W3C on the proposed W3C RAND Policy using my QA/Testing experience in reviewing the proposed policy: 1) With all due respect there has not been enough time for those of us not in the loop. The various details and history that have brought this W3C (RAND) Patent Policy proposal to its present form does take time research - not just from the proposal information on the W3C site, but also via those who make references in their comments on this policy and the comments themselves. I am well aware of the point(s) made by the W3C that there had been initially 6 weeks to comment on the proposed policy. It would seem painfully clear that W3C (RAND) Patent Policy effort was NOT made for interested parties to be aware of this proposed Policy. Look at the numbers, they speak clear on their own- 7 comments for 10 - 28 August 2001; 746 comments for two days, 29-30 September 2001, 755 comments 03 - 30 September 2001 9 of which are prior to 29 September 2001; and 1486 comments thus far for 01 - 11 October 2001. That is basically 2241 comments in a 13 day period. Sounds to me if an effort was made by the W3C initially there would of been many people that would have commented on the proposed RAND Policy by the initial 30 September 2001 date. 2) Open source implementations of a standard would not be possible for all intents and purposes as a license/royalty fee requirement would discriminate against software developed and made available for no profit. Also of note is such entities doe not have the ability to engage legal council, so will likely steer clear of any royalty free elements of the standard to avoid legal issues they cannot afford or personally risk. That means most of a "standard" my not be implemented via OSI type solutions rather than just avoiding the patent related elements. 3) Those who do have the financial resources to pay the license/royalty fee through their diverse income resources could still offer software containing their approved W3C patent related standard for free in order to gain market share against competitors (including other W3C members). The patent holder might also offer the software containing any of their own patent related standards for free to compete against alternative software developed for no profit. Further this would add a risk factor consideration that would shy "smaller" interests from licensing and implementing a patent related standard. Does this promote a healthy environment for a standard to be accepted by users? 4)) Part of what patents are about is to give a competitive edge to a company. The bigger the edge usually translates to a higher licencing/royalty fee. Has anyone considered how competing interests of commercial members of the W3C are going to play on deciding on a "standard" in a "reasonable, non-discriminatory" approach under a W3C (RAND) Patent Policy? It would be my considered opinion this also breeds conflict of interest issues. 5) The company/entity that holds that patent associated with the "standard(s)" does not have to pay any license/royalty fee for using the patent in their product. Some may argue that there were costs involved to develop the patent, filing, getting it approved, legal costs, costs to defend the patent, etc. The W3C (RAND) Patent Policy does not address this and therefore gives the patent owner a "reasonable" ("discriminatory") advantage. Have anyone ever heard of "reasonable discrimination"? I find it very hard to believe time or energy could develop any "policy" to balance such a (conflict of interest) issue, let alone the time it would waste from the real mission, Web Standards. 6) The essence of patents is to allow the patent holder the exclusive right for 20 years to license their "idea" to others. The concept is basically one where revenue is generated for the patent holder. This would clearly cause some sort of imbalance to proposing, merit consideration and approval mindset in evaluating "standards" related to patents. 7) Patents are only valid in the countries where a patent has been granted. That means users in those countries where a patent is granted will be discriminated against. Simply put users in such countries will be paying a fee as a consequence of the license terms associated with the patent related standard. Developers in countries where the patent is not filed and/or approved would be free to implement software that encompasses those patent related standards with no need to pay a license fee. I am sure I do not have to give examples of prior software patent situations that software was developed outside of the United States. 8) Enforcing the right to use the patent related standard could be a legal nightmare. I do not believe there are laws in place worldwide to enable any patent related standard's enforcement. An excellent example would be the patent related standard is server focus/implemented. Therefore servers in countries where the patent has not been granted may run software implementing the patent related standard. The issues could get much more merky where users (clients) in countries where the patent is granted interacts with servers in countries where the patent is not granted to use the patent related standard. There are different combinations of scenarios that would need to be considered. In the end, all it will take is one of those scenarios to be "legal" to diminish the licensing value of certain types of patent related standards, and perhaps "incentive" as a standard to approve by the W3C. 9) Patents can be costly item to develop, package, file for approval, legally defend when breached, etc. That again indirectly discriminates against those who do not have the resources in people, talent and money to even develop patents that may be worth consideration as part of an approved standard. I am not endorsing the proposed W3C (RAND) Patent Policy here, I am simply pointing out one more element of discrimination in the proposed Policy. 10) What liability considerations are encumbered to the W3C, the W3C staff and its members past, present and future by adopting any policy that allows W3C patent related standards? I would be inclined to the opinion that any patent related standard opens the door to legal actions not only between patent holders or their company, but now the W3C would be a party to situations where the W3C as a organization has approved a patent related standard. For example am approved patent related standard is later found to be subject to legal action and/or claims. Does the W3C have a budget, resources, and retained expertise to cope with such a circumstance? 11) There is no place for approving a patent related standard only to then find that all else being equal the standard is not really used. Cases may include specialized use in a limited audience that would actually use such a standard. Perhaps some other open or patent related standard supersedes it that does not use some or any of the previous patents. 12) There is the begging question of determining what licensing/royalties remedy terms of licensing/royalties to licensee's are reasonable under a very varied, but often short duty cycle, technology lifecycle? 13) Even the first cars of the early 1900's can still be driven and used on the roads and still in fact get people from point A to point B. Can the same be said of much of the technology used and their associated standards? The internet and its standards are "public" infrastructure. Therefore there is no place for any standard that is subjected to license/royalty terms to be used. The reason for the points is that a patent holder may take this into consideration a number of variables, some of which are very subjective, when determining a license/royalty fee for the patent. Of course it would also depend on how many licenses are taken up vs. where expected to be taken up for the patent related standard. Determining factors would likely include over what timeline and the lifespan of the patent related standard, consideration for break even point, and other licensee's that may take up the patent related standard longer down the lifespan should be factored into the "Reasonable" policy of the proposed W3C (RAND) Patent Policy? Sounds too complicated to define in a policy assuming all the events are known in the crystal ball. Clearly nobody knows what the future holds for a just about to be approved standard, therefore there can really be no definition of "reasonable" for the purposes of any proposed W3C (RAND) Patent Policy. Ok, now that is clear why I oppose patent encumbered standards by the W3C there have been two proposals put forward that would eliminate some of the issues I have noted. I would respectfully request another comment period from the community should the suggestions of Myddrin and/or Eric S. Raymond be taken and formulated into a evolved W3C (RAND) Patent Policy. I apologize to anyone that has made similar proposals, I simply have not had the time to read though all of the comments provided thus far on this matter. The entry made by Myddrin Oct 2, 2001, 12:58:17 re: Linux Today W3C's Response to Public Comments on the Patent Policy Oct 2, 2001, 05 :02 UTC (39 Talkback[s]) (4564 reads) http://linuxtoday.com/news_story.php3?ltsn=2001-10-02-002-20-NW-CY-LL& tbovrmode=1#talkback_area This was the first time I had heard concept proposed. I also like the element of taking smaller business into consideration. I saw it about a week ago, but I could not remember where I say it so it took me awhile to find it again. I have chosen to include a copy of this in my reply as I cannot find it in the comments posted so far and wish it to be part of the official record. Please know I am not taking any credit for Myddrin's comments. I did not have enough time to try to contact Myddrin to see if comments were already made to <www-patentpolicy-comment@w3.org>. I have copied Myddrid in on this submission using the eMail address I deduced from the Linux Today posting. That way Myddrid is aware of me referencing his comments. ============================================================== ============================================================== Thank Goodness! I'll have to go over the papers in detail, but here's what I'm thinking. Patents are OK* as long as: 1) The submitter provides a GPL'd implementation of the patent to the W3C 2) The submitter agrees in writting that, a non-exlusive, no-strings-attached patent license is granted in pepurtuity for use in all projects using an OSI approved license _AND_ for companies with net revenues under $1M USD. 3) Any backdoor patents (patents discovered after being made part of the standard) are automatically stripped from the standard. If the patent holder is a W3C member, they are fined $1M USD a day until the patent is in compliance(retroactively). The reasons are as follows: GPL Requirement: it provides for a reference implementation, which entities excempted from the license fees can use. Others can investigate the reference implementation, but must license the patent and implement their own. It allows the patent holder to take advantage of the fast and furious open source model of development. In exchange for these considerations, they end up with a better product. The small bussiness excemption: Small bussiness are a corner stone of the tech industry, providing many jobs throughout the world. As we all know, small bussiness tend to become big bussiness quickly. An unfair burden on them is an unfair burden on all. The open source excemption: In recognition of the importance of the open (or free) source development model to the internet community (60% of web servers, 80% of email, DNS servers and so on and so forth), and that due to the nature of open source development (that a RAND policy is defacto discrimatory to organizations w/o a corporate backer) all OSI approved licenses should be allowed to license patents without restrictions as long as the code remains open. Closing the code puts the onus of payment on the entity closing the code. So, for example, Netscape would have to pay for patents included in their closed version of mozilla... however the contributors to mozilla would not have to pay for their open source version. Submarine Patents:This provides an economic incentive for full disclosure by W3C members. I think this would achieve the W3C's goals and protect small bussiness and open source projects. The W3C's goals seem to be: Some of the goals of the proposed policy are to ensure that: 1. The Web community is not surprised by "submarine" patents whereby unsuspecting participants are forced to pay license fees after their participation in the creation of a Recommendation that they thought was unencumbered. 2. Future work is not hindered because of Fear, Uncertainty, and Doubt. The proposed policy is designed to promote better decisions through disclosure of information. The expectation is that information will allow a Working Group to proceed as is, to work around a perceived patent obstacle, or to abandon work entirely if perceived to be too encumbered by patents. These two goals (all though they imply there are others which are left unstated), are nobel... however we need to find some kind of middle ground where I will try and and flesh this out and post it to the policy folks... however, due to many deadlines coming up, my chances of doing so between now and the new deadline are very short. If someone else wants to clean this up and submit it, they are free to do so...although I do ask to be credited :) with and "inspired by a post by Myddrin on linuxtoday" and a link to this post. --- Myddrin Gnosis(the LIMS) -- glims.sf.net Panda Thumb -- ptmb.sf.net *Software patents are rarely ok. In fact I've yet to see a non-trivial software patent. I'm sure some exist in the AI, a graphics proccessing area... but I've not seen them. ============================================================== ============================================================== The next comment I saw two days ago that had similar thinking to Myddrin was the already posted submission by Eric S. Raymond, 09 October 2001 about 11:20. Eric's comments can be found via http://lists.w3.org/Archives/Public/www-patentpolicy-comment/2001Oct/1 310.html - -- OR -- http://linuxtoday.com/news_story.php3?ltsn=2001-10-09-011-20-OP-CY-LL Please note I do not know Eric. I copied Eric in on my submission so he is aware of my referencing of his thoughts and that there has been some other similar thoughts floated that Eric may find of interest. Regards, John L. Males Software I.Q. Consulting Toronto, Ontario Canada 11 October 2001 23:47 mailto:software_iq@TheOffice.net mailto:jlmales@softhome.net -----BEGIN PGP SIGNATURE----- Version: PGPfreeware 6.5.8 for non-commercial use <http://www.pgp.com> iQA/AwUBO8Z12PLzhJbmoDZ+EQJI3ACgjLe+DfWETSbPfz9q05W1CYIp2xEAoJbT 4W2kAt2E40Z2ZjgPQy2yD18f =zrMH -----END PGP SIGNATURE-----
Received on Thursday, 11 October 2001 23:47:49 UTC