Proposed RAND Licensing Terms

    The proposed RAND policy is a flawed document with no forseeable 
positive effect on the web.  First, the idea of non-discriminatory fees 
is not upheld by the document itself since, according to part 4.e.4 of 
the proposed patent policy framework, the license
    "may be conditioned on a grant of a reciprocal RAND License to all 
Essential Claims owned or controlled by the licensee and its Affiliates."
    This allows fellow RAND license holders to exempt each other from 
license fees, leaving the weight of the patents to fall on small 
companies, who would be handicapped from competing effectively by the 
several RAND licenses likely to be required for even a simple standard. 
 Furthermore, Any fee is discriminatory against the large body of 
open-source software that exists and encourages truly universal access.

    The idea of reasonable fees is also not very clear; and to expose a 
fee as unreasonable would be a legal issue - likely leading to a drawn 
out court case, an impracticality for many small companies.  Without a 
set definition of "reasonable" fees, the idea itself becomes impossible 
to enforce.

    In addition to the flaws of the proposal, it goes against the very 
grain of several of the WTC goals (

    1. Universal Access - License fees will do little but increase the 
price, and so decrease the availability, of compatible software, 
allowing fewer people to gain the resources to access it.
    4. Interoperability - While the proposed clause quoted above may 
encourage some agreement between companies, the allowance of patents 
will push several companies who do not wish to exchange intellectual 
property or pay fees to develop competing implementations of portions of 
the standard, thus defeating any interoperability of the products in the 
    5. Evolvability - Evolving and building on existing standards will 
become more difficult, as modifications of patented portions may be 
blocked or delayed by the patent holders seeking to retain income from 
work in the standard.
    6. Decentralization - If RAND fee patents are allowed, the web will 
become increasingly dependent on specific companies which hold then and 
thus more centralized around them.

    Patents were created to encourage innovation by rewarding inventors 
for making their ideas public; the resulting handicap for consumers was 
felt to be a productive tradeoff.  In this case, the encouragement is 
unnecessary and counter-productive.

    The growth of the web - to the benefit of all consumers and all 
companies, not just a few large ones - has been based on the core, open 
standards, and hindered by proprietary incompatibilites.  Technologies 
such as streaming media have been slowed in their adoption through a 
lack of open standards.

    This proposal would discourage much of the open contribution that 
has built the web, reducing innovation in addition to handicapping 
consumers and software designers.  I can see no reason to consider this 
policy change, especially given the short period allowed for public comment.

    David Northover

Received on Sunday, 30 September 2001 19:25:59 UTC