- From: David Brownell <david-b@pacbell.net>
- Date: Sun, 30 Sep 2001 11:31:39 -0700
- To: www-patentpolicy-comment@w3.org
I've been browsing some of the comments about this recent working draft, and find a lot of things to agree to in comments arguing against permitting W3C Recommendations (or in effect, "standards") to entail global licensing taxes. I'll hope that this isn't a case where public comment will be ignored. The "Patent Policy" TR should correct its usage of "Royalty Free" (RF). Every RF licence I've seen has involved hefty up-front fees, as the _alternative_ to "reasonable" royalties based on unit sales. Excluding 4(e)5 makes this TR's usage be confusingly different from common practice, and calls into question the intent to truly exclude such up-front fees. At the very least, "Zero Cost" licensing needs to be a "mode". I'm also pleased to see the number of comments that seem to be coming in at the last moment. It seems that this TR was not particularly well known until recently. I - NO ADDITIONAL STRUCTURAL BIASES As a world-wide organization claiming to represent all sectors of the web community, W3C should not be granting additional structural preferences to the first-world corporations which are the primary beneficiaries of today's malfunctioning patent systems. (The problems of the US PTO are mentioned in the TR, although that mention appears to treat that bug as a feature.) Any kind of mandatory fee-based licencing is by definition discriminatory; it can't be "RAND". In addition, adoption of such fees by W3C would in effect be creating a world-wide technology-based taxing authority, furthering first-world profit agendas at the expense of the rest of the world. II - OPEN SYSTEMS REQUIRE NO FEES The genesis of the Web was in "Open Systems" processes where the only real barriers to entry were ability to master technical complexity and to deliver real value in the form of a service (or product). Encouraging RAND, as opposed to zero cost licensing, creates new kinds of barriers. More, it turns the development paradigm into "Closed Systems", in the sense that it excludes the Open Source development community which has driven much of the web innovation. (That's particularly on the server side; but it's starting to get corresponding traction on client side systems. I know that some corporations don't really want competitors, and it sure looks like RAND could eliminate some great ones.) Clearly W3C needs a patent policy, to prevent "submarine" patents with surprise costs. But I'd argue that the overall community would be far better served by having that policy dictate "zero cost licences". Vendors can and should use non-W3C processes to extract revenue from patents; and W3C should continue to provide the level playing field which it was founded in order to create. III - HOW TO DEAL WITH PATENTS When W3C members declare relevant claims, they should have at least two options: granting zero cost licences, so that the REC would have a safe IP foundation; and specifying licensing terms. If the WG continutes, it would design around any for-profit licences; and otherwise it would dissolve. (The process might move outside of W3C into some vendor-oriented context, though W3C should not grant permission to use any of its work results in that new context.) In no circumstance should a member's not declaring they have a patent give them the ability to "submarine" licensing taxes of any kind out of a resulting REC. Such taxes are unfair to other WG participants, as well as to others who contribute to such a REC. Giving up options to impose such world-wide taxes should be costs assumed by members in return for the ability to control and influence development of W3C standards to use their technologies. They would maintain the ability to use non-W3C mechanisms to extract such taxes. IV - ADDITIONAL SAFEGUARDS NEEDED Unfortunately the "good faith" standard is toothless, and hence useless. I understand that corporations will demand such loop-holes, but can't support the ability of any organization to torpedo standards in such a manner. Tax-inducing pattents applying to standards are significant structural defects. Stronger efforts are needed to prevent them from appearing. There also need to be procedural safeguards against WGs which might be tempted to create standards that are incomplete, and which can only be implemented in usable form with the use of for-payment patent claims. For example, if it needed six claims from some patent, but only three were deemed "essential" in some REC, the community would be severely disserved. The W3C has unfortunate precedent in producing REC documents that are incomplete. I'll use DOM as one example: both DOM L1 and L2 can't be implemented, or even tested, without additional "back door" functionality which isn't even enumerated in the specifications. When such functionality needs to use patented technology, it looks like the current patent policy TR can't cover the threat. - David Brownell
Received on Sunday, 30 September 2001 14:32:56 UTC