- From: Mark Shewmaker <mark@openpatents.org>
- Date: Fri, 12 Oct 2001 00:01:52 -0400
- To: www-patentpolicy-comment@w3.org
1. I am wanting to push the notion of a patent cross-licensing agreement currently called the Open Patent License (OPL) at www.openpatents.org. The agreement would allow participants to create products incorporating submitted patents royalty-free: 1. In any code distributable under an Open Source license, or 2. In any non-Open Source code if all incorporated patents are similarly licensed. One of the main goals is to let participants use their own patents to solve the problems patents cause, in a way similar to the way the GPL turns copyright on itself for free software. (Granted, I'm biased as to this specific patent license-in-progress.) Interestingly, both the definitions for RAND and RF in the proposal at http://www.w3.org/TR/2001/WD-patent-policy-20010816/#def-RAND preclude the use of such a license. I consider the OPL a solution to the some problems of software patents--a company could conceivably want to license its patents under the terms of one of the Options of the OPL, effectively allowing what would normally be considered RF use. In fact, if all members decided to adopt something like the OPL, not only would that allow their patents to generally be used in Open Source works, but it would tend to protect against slow hijacking of "additions" to standards much more than would complete RF patent licensing terms. However, even this more-friendly-than-RAND option is not allowed by the "no further conditions" clause. (Although RF may seem better in individual cases, a defensive patent cross-licensing scheme in which use is royalty-free only when no non-submitted patents are incorporated may be a better long-term solution for making sure patent encumbrances don't become added as common-additions-to-standards one-by-one by various companies, slowly slowing down progress. In a defensive patent cross-licensing scheme, the addition of any non-submitted patent invalidates the ability to use the submitted patents in a royalty-free way, thus causing the defector to have to pay "full price", as opposed to being able to take advantage of the the royalty-free agreements everyone "playing nice" has decided to do.) (As a side note, and at the risk of flame wars, a OPL-type versus RF-type patent license differences are vaguely similar to GPL-type versus BSD-type software license differences. IMHO the arguments for each mostly transfer to the patent domain. The problem here is that the RAND license precludes some things that would be needed in an OPL-type license.) 2. According to http://www.w3.org/2001/10/patent-response , One of the "goals of the proposed policy is to ensure that: 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." Yet, section 8 of the proposed policy, "Member Patent Licensing Commitments", merely requires RAND licensing of all non-disclosed patent. It does not require royalty-free licensing. The proposal at http://www.w3.org/TR/2001/WD-patent-policy-20010816/ does not meet the stated goal above. Proposal for modifying Section 8: --------------------------------- Section 8 should require mandatory RF licensing of these non-disclosed patents for the different conditions under which it currently suggests merely requiring RAND-type licensing. Alternate proposal for modifying Section 8: ------------------------------------------- With the current W3C proposal, a member organization whose patents are required for a given standard that had not disclosed the existence of those patents WILL STILL BENEFIT FROM THAT NONDISCLOSURE TO THE DETRIMENT OF ALL OTHER IMPLEMENTORS AND USERS OF THE STANDARD. If the existence of mandatory RF licensing for these submarine cases is not acceptable to some parties, then I would suggest an option of some type of royalty-free defensive patent cross-licensing agreement as I described above that the patent holder be permitted to chose instead. Note that I am not after "punishing" the member organization that possesses the non-disclosed patents. I am quite happy for them to benefit from standards they helped create--that's one of the main reasons to participate in the creation of standards after all. However, they should simply not gain unfair advantage from having a non-disclosed monopoly become part of the standard. (The question of whether the nondisclosure was intentional or not is irrelevant in my mind.) A mandatory RF patent-licensing requirement would erase the member's own monopoly benefit, but a royalty-free patent cross-licensing agreement of the style above would not only erase that particular unfair monopoly benefit, it would also create a poison pill for 3rd parties. 3rd parties not agreeing to this cross-licensing agreement would then not benefit from the royalty-free licensing the agreement provides. This defecting 3rd-party would then be required to pay royalties to all of the patent holders who are "playing nice". 3rd parties who decide to "play nice" would find it cheap to do so, while 3rd parties who've decided to encumbering others restrictive, (even RAND-type) patent licenses would find it more expensive. It would be pleasant to think that W3C members not disclosing their patents would be allowed to license them in such a way as to in effect require 3rd parties to "play nice". 3. As to the acceptability of RAND terms for W3C standards, looking at "About the World Wide Web Consortium (W3C)" document at http://www.w3.org/Consortium/ shows how requiring patents incorporated in its standards to be merely available under RAND terms are incompatible with the W3C as an organization: 3a. W3C creation: ------------------ "The World Wide Web Consortium was created in October 1994 to lead the World Wide Web to its full potential by developing common protocols that promote its evolution and ensure its interoperability." Potential interoperability is severely limited if the creation of inter operable code is limited by requiring royalties payments for patents. 3b. W3C Goals--Universal Access: --------------------------------- "W3C's Goals W3C's long term goals for the Web are: 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." The principle of Universal access is incompatible with RAND, royalty-requiring patent-licensing terms. 3c. W3C Design Principle--Decentralization: -------------------------------------------- Design Principles of the Web 3. Decentralization: Decentralization is without a doubt the newest principle and most difficult to apply. To allow the Web to "scale" to worldwide proportions while resisting errors and breakdowns, the architecture (like the Internet) must limit or eliminate dependencies on central registries. Patents offices themselves, being central registries of local restrictions, are just as limiting to the web as the types of registries normally associated with such a decentralization principle. Patents can create localized legal choke-points of innovation that causing scaling problems in technical solutions that are just as badly as scaling problems that have technological causes. 3d. W3C Role--IP Licensing differences between industries: ----------------------------------------------------------- "W3C's Role As with many other information technologies, in particular those that owe their success to the rise of the Internet, the Web must evolve at a pace unrivaled in other industries. Almost no time is required to turn a bright idea into a new product or service and make it available on the Web to the entire world;" There is a large consensus in the other responses to this proposal that one of the main reasons for the "unrivaled pace" that the web has evolved at is precisely the absence of RAND-type terms for patent licensing. In fact the proposal itself, at http://www.w3.org/TR/2001/WD-patent-policy-20010816/ , mentions the inherent compatibility of an unrivaled pace of evolution with RF (not RAND) licensing terms in the introduction to section 2: 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. In contrast to other network industries such as telecommunications or transportation, innovation has occurred without recourse to patent rights to protect investment in research and development. But then in section 2.1: as the Web comes into contact with the telecommunications, broadcast media and consumer electronics industries, the tradition of patenting technology from those industries will likely be carried over to the Web. That begs the question. Given that: 1. The web has evolved and improved much faster than other industries because of the virtual absence of patent encumbrances. 2. the web will be coming into contact with industries in which patent encumbrances abound, and that improve and evolve much more slowly because of this, why should we throw up our hands and decide as a group to limit ourselves to the pace of innovation that these other industries have subjected themselves to? Wouldn't it make more sense to retain our principles while opening up these other industries to the possibilities of the type of faster evolution that the web and the Internet as a whole has seen? We should view the increasing contact of the web with other industries as an opportunity to help them become more innovative, not as an opportunity to give ourselves virtual lobotomies via non-RF IP licensing. It's a great idea for the W3C to clarify its patent policy. However, I would prefer the clarified policy to require patents to be made available on a RF basis, perhaps with something like the Open Patent License I'm wanting to promote being acceptable, but in any event allowing royalties to be required is not only at odds with the W3Cs goal's, it will slow down future web development. (Rather it would, if the community continued to follow W3C recommendations. In all likelihood, this policy would probably result in the W3C being side lined.) Section 4(e)5 should be amended to disallow royalty fees, and section 4(e)6 should possibly be amended to allow for something like the Open Patent License, (these would be small changes). In no event should an implementor of a W3C standard be required to pay royalties. In no event should a writer of Open Source code be required to pay for permission to write an implementation of a standard. -Mark Shewmaker mark@openpatents.org
Received on Friday, 12 October 2001 00:01:48 UTC