RAND vs Universal Access; many other loopholes

Re: http://www.w3.org/TR/2001/WD-patent-policy-20010816/

To date, W3C has been proud to be able to state that

 The W3C is not presently aware of any non-free patent that is
 essential to any existing W3C recommendation.

Its existing policy is helpful in this regard:
 2.2 Intellectual Property Rights (IPR) Policy

 Whenever possible, technical decisions should be made unencumbered by
 intellectual property right (IPR) claims. To this end, W3C discloses
 to the entire Membership which organizations have made IPR claims
 about a particular technology, as well as the details of those claims
 where they have been provided. Individuals should immediately
 disclose any IPR claims they know may be essential to implementing a
 Recommendation track technical report.

One of the W3C's long term goals for the web has been, and should continue
to be, Universal Access, as stated at http://www.w3.org/Consortium/

 1. Universal Access: To make the Web accessible to all by promoting
 technologies that take into account the vast differences in culture,
 education, ability, material resources, and physical limitations of
 users on all continents;

Given the dramatic differences in material resources across the world,
the only hope for providing anything approaching "Universal Access"
for poor people in poor countries, is to ensure that all standard
software-based web technologies are available Royalty Free.
In fact, this has been central to the success of the Web and other
software-based Internet technologies to date even in rich countries.

Improving the clarity of the disclosure requirements is a good thing.

But W3C should drop the RAND model from the proposed patent framework.


There are huge loopholes in the framework which must also be
closed.


There is a great deal of slack in the definitions.  E.g.
"Essential Claims" are defined such that companies are not
required to provide even RAND licenses for optional portions
of Recommendations - only the "required portions" are covered.


If a public working draft comes out, and 18 months later a patent
application is filed, and subsequently these patent-pending ideas are
incorporated into subsequent drafts, it appears that claims in these
patents would not be deemed "Essential":

 "Essential Claims" shall mean all claims in any patent or patent
 application with an effective filing date within one year and one day
 after the publication of the first Public Working Draft.

The clause relating to the time of filing should just be dropped.


Another loophole: no one ever needs to give notice if they hold
patents which would be infringed by
 "the implementation of technology developed elsewhere and merely
 incorporated by reference in the body of the Recommendation."

So a Recommendation could be fully approved and widely implemented,
after which even a W3C member could announce with impunity that they
planned to demand royalties in a discriminatory way.

All points in 4 (a) 2 should be dropped.


The W3C definition of "Contribution" is very loose.  Lawyers are
accustomed at claiming rights to all sorts of trivial-sounding ideas.
It would be embarrassing and time consuming for a WG chair to
constantly be asking for IPR statements.  Working Group Chairs should
not have to be experts in both Intellectual Poperty Law and all fields
of software.

The IETF has had extensive experience with this and has a very
inclusive policy on what a contribution is:

	  http://www.ietf.org/ipr.html

 All statements related to the activities of the IETF and addressed to
 the IETF are subject to all provisions of Section 10 of RFC 2026,
 which grants to the IETF and its participants certain licenses and
 rights in such statements.

 Such statements include verbal statements in IETF meetings, as well
 as written and electronic communications made at any time or place,
 which are addressed to

    - the IETF plenary session,
    - any IETF working group or portion thereof,
    - the IESG, or any member thereof on behalf of the IESG,
    - the IAB or any member thereof on behalf of the IAB,
    - any IETF mailing list, including the IETF list itself,
      any working group or design team list, or any other list
      functioning under IETF auspices,
    - the RFC Editor or the Internet-Drafts function

 Statements made outside of an IETF meeting, mailing list or other
 function, that are clearly not intended to be input to an IETF
 activity, group or function, are not subject to these provisions.

W3C should use this definition of a Contribution or one like it.


The definition of "non-discriminatory" is unclear.  E.g. would RSA's
free license for non-commercial use of RSAREF qualify?  Or whatever
deal they made with Netscape when SSL came out?  In the rare cases
where some very important technology is claimed by an unscrupulous
company, the community may be served by a license which other
commercial interests could claim to be "discriminatory".


I agree with Chris Lilley that there should be a requirement to
clarify whether disclosed patent claims are deemed by the owner to be
"essential" or not, once a specification is sufficiently mature.


Section 5 says:

 Working Groups will be expected to produce a final Recommendation
 that can be implemented in accordance with the licensing mode
 specified. These requirements cannot prevent cases in which patent
 claims held by non-W3C Members, or by W3C Members who chose to
 opt-out (see section 8.1 and section 8.2) of the licensing
 requirement, from interfering with the established licensing
 expectations of the Consortium.

It is indeed possible for the requirements to prevent Members from
opting out "and thus thwarting the established licensing expectations
of the Consortium".  Either re-work the spec to eliminate the
infringement, or just don't even produce a Recommendation under such
circumstances.  Rewarding such opt-out behavior by providing the
imprimatur of a W3C Recommendation would seem to almost always be
inappropriate, and would likely do great damage to the reputation of
both the W3C and the member in question.


The argument in the "First formal objection"
 http://www.w3.org/2001/08/ppwg-fo2-16July2001.html
is specious:

 it is unfair to require a licensing commitment from non-working group
 members: they were not involved in the development of the
 Recommendation; they lack the knowledge to perform patent searches;
 and they probably have no interest in implementing the
 Recommendation;

Such a company must presume to be capable of tracking down infringing
implementations after they come to market, so saying it is too
burdensome for the company to even look at the spec and identify
relevant patent claims before it becomes final is simply to say that
the company has no interest in a reasonable standards policy.
It isn't an issue of whether the company intends to implement the
Recommendation.  It is a question of whether they intend to be able
to profit from implementations by others in a discriminatory way.

It will also generally be easier for a company to identify infringing
technology based on a public specification than it would be if the
infringing technology was buried in a non-standards-based proprietary
product.  This is an opportunity for the patent holders to make money
more easily.  There is no requirement to provide licenses for all
purposes, just for implementations of the Recommendation.


I agree with IBM's support of unlimited defensive use of patents:

 We propose that the original patent owner retain the right to
 withdraw or terminate licenses for patents with essential claims when
 a licensee institutes a patent infringement action against the patent
 owner. (This process only affects the party who has brought suit.
 All other licenses remain in force.)


Neal McBurnett <neal@bcn.boulder.co.us>
http://bcn.boulder.co.us/~neal/
  (with GPG/PGP keys to verify my signature or send private email)