Re: Proposed Patent Policy of February 26, 2002

Seems to me your superclass citizen [non-human persons:corps, npo,
quasigover] example suggest the possibility that copyright law
and the patent laws might find a constitutional challenge.  The
constitution provides patents grant for purpose to advance science and
arts.  Your example names but one member of the superclass but suggests a 
long standing industry wide practice, wherein patents are used to restrict the 
advancement of science.  The example suggest that the better science
effort is aimed at distributing, in unrestricted ways, the newly developed
science( in this clear cut case: standards to be used by everyone) to the
most people something the open system does quite well.  Can someone build
a case to show that members (or at least some members) are using their
patents to impede instead of advance the cause of science.
     Maybe Congress could be persuaded to draft legislation that if a
patent or copyright holder can be shown to have used their grant of patent
and the priviledge to monopolize a knowledge or knowledge product in a
way which restricts the constitutional meaning of the advancement of  
science or arts, that on a showing of that case in a court of competent
jurisdiction, that the grant of the patent is rescinded and the contents
falls into the public domain.
     Obviously, one practice would immediately be ruled out.  That is the
practice of acquiring patents and or copyrights and doing absolutely
nothing with them.  The knowledge in these IP monopolies should become
public domain immediately.
sterling stoudenmire   
   


tOn Wed, 20 Mar 2002, Daniel E. Maddux wrote:

> World Wide Web Consortium
> Patent Policy Working Group
> www-patentpolicy-comment@w3.org
> 
> W3C Patent Policy Working Group:
> 
> The Patent Policy Working Group ("PPWG") released a Working Draft on
> February 26, 2002.  For the same reasons as I stated in my comments of
> October 10, 2001 (see
> http://lists.w3.org/Archives/Public/www-patentpolicy-comment/2001Oct/1398.html)
> and November 06, 2001 (see
> http://lists.w3.org/Archives/Public/www-patentpolicy-comment/2001Nov/0014.html),
> I object to Sections 2 on Exclusions from RF Commitment and 4 on
> Disclosure.  I also think that Sections 3 on Royalty-Free Licensing
> Requirements and 5 on Exception Handling should be modified to remove
> the potential for abuse which these Sections create.
> 
> I.  SECTION 2: Exclusion From RF Commitment
> 
> I have 2 objections to Section 2:
> 
>    (i)  allowing Members who will not RF license their patents to
> continue
>         participating in a Working Group
>    (ii) allowing Members to exclude patents when joining an already
> existing
>         RF Working Group
> 
>    A.   Allowing Members Who Will Not RF License Their Patents To
> Continue
>         Participating In A Working Group
> 
> I object to Section 2 allowing Members who will not RF License their
> patents to continue participating in a Working Group.  In my opinion,
> allowing Members who will not RF License their patents to continue
> participating in a Working Group creates the potential for these Members
> to disrupt and/or abuse the Standard-setting process.  As I stated in
> Point 2(i) of my October 10, 2001 comments (see
> http://lists.w3.org/Archives/Public/www-patentpolicy-comment/2001Oct/1398.html),
> allowing W3C Members to exclude Essential Claims of a patent or patents
> while continuing to participate in a Working Group permits these Members
> to negotiate a better/more profitable license for their patents and/or
> bias the proposed Recommendation in the Member's favor in exchange for
> RF Licensing their patents.  For example, IBM may refuse to RF license
> their patents on Speech Recognition while continuing to participate in
> the Voice Browser Working Group.  After refusing to RF license its
> patents, IBM may advocate drafting the Voice XML 2.0 or 3.0
> specification such that the specification reads on IBM's patents.  IBM
> may then refuse to change the specfication and thereby force the Voice
> Browser Working Group to either abandon the Voice XML 2.0 or 3.0
> specification or RAND license IBM's patents covering the Voice XML 2.0
> or 3.0 specification.
> 
> Alternatively, IBM may advocate drafting the Voice XML specification
> such that it does not read on other Members' patents to prevent rival
> Member's patents and technology from becoming a web standard.  For
> example, MICROSOFT also owns patents on Speech Recognition.  Since both
> IBM and MICROSOFT own speech recognition patents, IBM may advocate
> drafting the Voice XML specification such that it does not read on any
> of MICROSOFT's patents.  By drafting the Voice XML specification such
> that it does not read on any of MICROSOFT's patents, IBM prevents
> MICROSOFT's speech recognition patents and technology from becoming a
> web standard.
> 
> Although I am presenting examples of IBM abusing their patents, other
> W3C Members are just as prone to abuse their patents in developing web
> standards.  MICROSOFT has recently been requiring OEM licensees to
> provide MICROSOFT with RF licenses to the OEM's patent portfolios in
> exchange for Windows Operating System Licenses (see "Sony: MS already
> using Seattlement terms to screw us" at
> http://www.theregister.co.uk/content/4/24096.html and "HP, Gateway: MS
> Seattlement terms screw us too" at
> http://www.theregister.co.uk/content/54/24162.html).
> 
> By requiring W3C Members who will not RF license their patents to resign
> immediately from the Working Group, the proposed Patent Policy will
> prevent W3C Members from abusing the W3C standard-setting process for
> their own selfish gain.  If W3C Members who will not RF License their
> patents are required to resign from the Working Group, then they will no
> longer be able to influence the drafting of the specification.  For
> example, requiring IBM to resign from the Voice Browser Working Group
> for not RF licensing their patents prevents IBM from influencing the
> drafting of the Voice XML 2.0 or 3.0 specification.  Since requiring IBM
> to resign from the Voice Browser Working Group for not RF licensing
> their patents prevents IBM from influencing the drafting of the Voice
> XML 2.0 or 3.0 specification, IBM will not be able to abuse the W3C
> standard-setting process for its own selfish gain.
> 
> Thus, by allowing W3C Members to exclude their patents from RF Licensing
> and continue participating in a Working Group, Section 2 allows these
> Members to abuse the W3C standard-setting process for their own selfish
> gain.  Since Section 2 allows these Members to abuse the W3C
> standard-setting process for their own selfish gain, Section 2 should be
> rewritten to *require* W3C Members who will not RF license their patents
> to resign immediately from the Working Group.  In particular,
> Sub-Sections 2.2.1 and 2.2.2 should be deleted and a new Sub-Section
> 2.2.1 should be inserted requiring W3C Members who will not RF license
> their patents to resign immediately from the Working Group.  By
> requiring W3C Members who will not RF license their patents to resign
> immediately from the Working Group, the proposed Patent Policy will
> prevent W3C Members from abusing the W3C standard-setting process for
> their own selfish gain.  By preventing W3C Members from abusing the W3C
> standard-setting process for their own selfish gain, my proposed
> Sub-Section 2.2.1 will help ensure that W3C standards remain RF and
> non-proprietary.
> 
>    B.  Allowing W3C Members To Exclude Patents When Joining An Already
> Existing
>        RF Working Group
> 
> For the same reasons that I stated in I.A. above, I think that W3C
> Members should not be allowed to join an already existing Working Group
> and exclude any of the Member's patents from RF licensing.  In
> particular, allowing a W3C Member to join an already existing Working
> Group and then choose to exclude its patents from RF licensing provides
> the Member with the same opportunities for abusing their patents as
> stated above in I.A.; namely, to draft the specification such that it
> reads on the Member's patents or else to draft the specification such
> that it does not read on a competitor's patents.  Since allowing a W3C
> Member to join an already existing Working Group and then choose to
> exclude its patents from RF licensing provides the Member with the same
> opportunities for abusing their patents as stated above in I.A., Members
> should not be allowed to join an already existing Working Group and then
> choose to exclude their patents from RF licensing.
> 
> Sub-Section 2.2.3 is superfluous and should be deleted from the proposed
> patent Policy.  Since a Member knows the patent policy of an already
> existing Working Group before joining, the Member who wants to exclude
> its patents from RF licensing can exercise the option of not joining the
> Working Group.  Since the Member who wants to exclude its patents from
> RF licensing can exercise the option of not joining the Working Group,
> the Member already has a solution for not RF Licensing its patents.
> Since the Member already has a solution for not RF Licensing its
> patents, Sub-Section 2.2.3 is superfluous and should be deleted from the
> proposed patent policy.
> 
> II.  SECTION 3: Royalty-Free Licensing Requirements
> 
> I object to the last clause of Sub-Section 7 as allowing W3C Members to
> abuse their patents.  The relevant part of Sub-Section 7 states:
> 
>    ...but may include reasonable, customary terms relating to operation
> or
>    maintenance of the license relationship such as the following: choice
>    of law and dispute resolution;
> 
> The phrase "reasonable, customary terms" is vague.  Since the phrase
> "reasonable, customary terms" is vague, it allows W3C Members to
> interpret this phrase to further their own selfish interests.
> Specifically, this phrase allows W3C Members to add additional terms to
> an RF license which hamper open standards.  For example, a consortium
> called the Liberty Alliance has proposed a standard for individuals
> purchasing items over the internet, while MICROSOFT has proposed a
> competing standard called Passport.  As I stated above in I.A.,
> MICROSOFT has required Windows OS Licensees to RF License their patent
> portfolios to MICROSOFT as part of the licensing contract.  Since
> MICROSOFT has required Windows OS Licensees to RF License their patent
> portfolios to MICROSOFT as part of the licensing contract, MICROSOFT may
> (actually will) also require licensees of their patents that cover a W3C
> specification to agree to use only Passport and not the Liberty Alliance
> standard.  MICROSOFT will argue that requiring licensees of their
> patents covering a W3C specification to use only Passport is a
> "reasonable, customary" term and thus meets the requirements of
> Sub-Section 7.  In particular, MICROSOFT might require licensees of its
> patents covering the Voice XML 2.0 or 3.0 specification to use only
> Passport.  Since the phrase "reasonable, customary terms" allows W3C
> Members like MICROSOFT to require licensees of their patents covering a
> W3C specification to consent to additional onerous terms to the RF
> license, Sub-Section 7 should be rewritten to delete the last clause.
> Specifically, Sub-Section 7 should be rewritten as follows:
> 
>      7.    may not impose any further conditions or restrictions on the
>      use of any technology, intellectual property rights, or other
>      restrictions on behavior of the licensee;
> 
> By removing the last clause of Sub-Section 7, Sub-Section 7 now prevents
> W3C Members from abusing their patents by adding onerous terms to RF
> licenses of these patents.
> 
> I am also wary of allowing patentees to use alternative dispute
> resolution ("ADR") to resolve conflicts with licensees.  I think
> allowing patentees to specify ADR for resolving conflicts with licensees
> also has the potential for abuse.  Specifically, I think the allowing
> patentees to specify ADR may allow patentees to choose forums that are
> partial to the patentees for resolving these conflicts.  By allowing
> patentees to specify ADR may allow patentees to choose forums that are
> partial to the patentees for resolving these conflicts, this proposed
> patent policy could be unfairly discriminating against licensees who do
> not have the financial resources to contest unfavorable outcomes in ADR.
> 
> III.  SECTION 4: Disclosure
> 
> I reiterate my objections stated in Point 2 of my October 10, 2001
> comments (see
> http://lists.w3.org/Archives/Public/www-patentpolicy-comment/2001Oct/1398.html)
> and "SUMMARY OF MAIN ISSUES DISCUSSED: 2. RF OR RAND OR MIXTURE" in my
> November 06, 2001 comments (see
> http://lists.w3.org/Archives/Public/www-patentpolicy-comment/2001Nov/0014.html).
> Specifically, I think that all W3C Members should either commit to RF
> Licensing their essential patents when joining a Working Group or be
> required to search for and disclose all essential patents relating to a
> Working Group's proposed specification.  I think that requiring Members
> of a Working Group to search for and disclose all essential patents
> relating to a Working Group's proposed specification is necessary to
> prevent Members from seeking "submarine" patents like RAMBUS did with
> the SDRAM standard for JEDEC.
> 
> Searching for patents is not a difficult or onerous task.  At the very
> least, Members can search the United States Patent and Trademark
> Office's Patent Database at http://www.uspto.gov.  Since the United
> States is the primary issuer of software patents, most patents which may
> affect a W3C Working Group will be United States patents.  Furthermore,
> the World Intellectual Property Organization ("WIPO") maintains a
> database on the patent laws of most industrialized nations (see *).
> Since the United States Patent and Trademark Office and WIPO maintain a
> database of issued patents, requiring W3C Members to search the patent
> databases of the United States Patent and Trademark Office and WIPO is
> not a difficult or onerous task.  Since requiring W3C Members to search
> the patent databases of the United States Patent and Trademark Office
> and WIPO is not a difficult or onerous task, W3C Members should be
> required to search for patents affecting a Working Group's
> specification.
> 
> I also think that attorneys, both in-house counsel and retained law
> firms, should be subject to the proposed patent policy's disclosure
> requirements.  Since W3C Members claim that they have difficulty
> searching their patent portfolios, the W3C should require the Members'
> attorneys to search and disclose relevant patents.  Furthermore, I
> notice the MICROSOFT retains an attorney for participating in the Patent
> Policy Working Group (Mark DeLucca or Woodcock Washburn).  Since
> MICROSOFT retains an attorney for participating in the Patent Policy
> Working Group, I fail to see why other Members cannot also retain
> attorneys for participating in the Patent Policy Working Group.  And if
> MICROSOFT and other Members can retain attorneys for participating in
> the Patent Policy Working Group, then they can also retain attorneys for
> searching their patent portfolios for patents affecting a Working
> Group's specification.  Since the W3C Members can also retain attorneys
> for searching their patent portfolios for patents affecting a Working
> Group's specification, this proposed patent policy should require these
> Members to subject their attorneys to these patent disclosure
> requirements.
> 
> Requiring Members' attorneys, both in-house counsel and retained law
> firms, will promote the full disclosure of Members' patent portfolios.
> Members' patent attorneys prosecute (i.e., draft, apply for, and obtain)
> patent applications for the Member.  Since Members' patent attorneys
> prosecute (i.e., draft, apply for, and obtain) patent applications for
> the Member, they will be most familiar with a Member's patent portfolio.
> Since Members' patent attorneys will be most familiar with a Member's
> patent portfolio, they should also be subject to the W3C's patent policy
> on disclosures.  By making Members' attorneys subject to the W3C's
> patent policy on disclosures, this patent policy will promote the full
> disclosure of Members' patent portfolios.  By promoting the full
> disclosure of Members' patent portfolios, this proposed patent policy
> will prevent Members from using their patents to obstruct a Working
> Group's ability to draft specifications for new web standards.  By
> preventing Members from using their patents to obstruct a Working
> Group's ability to draft specifications for new web standards, this
> proposed patent policy will promote Working Group's ability to develop
> new and open standards for the world wide web.
> 
>    A.  Sub-Section 4.3 Good Faith Disclosure Standards
> 
> Sub-Section 4.3 "Good Faith Disclosure Standards" should require a
> patent search if a Member does not agree to RF License all patents
> essential to a Working Group specification.  The first sentence of
> Sub-Section 4.3 states in relevant part:
> 
>      Satisfaction of the disclosure requirement does *not* require a
> patent
>      search, ...
> 
> For the reasons stated above, I disagree.  I think that satisfaction of
> the disclosure requirement *does* require a patent search to prevent W3C
> Members from pursuing submarine patents on W3C specifications.
> Furthermore, I think that W3C Members should be prohibited from filing
> patent applications on proposed or adopted W3C specifications to also
> prevent Members from obtaining submarine patents on W3C specifications.
> As I discuss in "2. RF OR RAND OR MIXTURE" of my November 06, 2001,
> comments (see
> http://lists.w3.org/Archives/Public/www-patentpolicy-comment/2001Nov/0014.html),
> not requiring Members to perform patent searches encourages Members to
> obtain and use submarine patents covering W3C specifications and
> standards.  Futhermore, not prohibiting Members from filing patent
> applications on W3C specifications and standards encourages them to do
> just that.  Since not requiring Members to perform patent searches
> encourages Members to obtain and use submarine patents covering W3C
> specifications and standards, this proposed patent policy should require
> Members to search their patent portfolios for essential patents
> affecting a Working Group's purpose or specification.  Since not
> prohibiting Members from filing patent applications on W3C
> specifications and standards encourages them to do just that, this
> proposed patent policy should also prohibit Members from filing patent
> applications on W3C specifications and standards.
> 
> Invited Experts should also be required to search their patent
> portfolios for essential patents affecting a Working Group's
> specifications or standards.  Invited Experts will usually own, or by
> employed by the owner of, patents that may cover a Working Group's
> specification or standard.  Since Invited Experts will usually own, or
> by employed by the owner of, patents that may cover a Working Group's
> specification or standard, they will have an economic interest in
> drafting the Working Group's specification or standard such that the
> Invited Expert's patents cover the Working Group's specification or
> standard.  Since an Invited Expert will have an economic interest in
> drafting the Working Group's specification or standard such that the
> Invited Expert's patents cover the Working Group's specification or
> standard, they should be subject to the same disclosure requirements as
> Members.
> 
> IV. SECTION 5: Exception Handling
> 
> I object to Section 5 for not including a procedure for allowing a
> Patent Advisory Group to solicit prior art from the public and use this
> publicly solicited prior art to invalidate patents which read on a W3C
> specification and which are not available on RF licensing terms.  As I
> discuss in "A. The Patent Policy Working Group is pro-patent" of my
> November 06, 2001, comments (see
> http://lists.w3.org/Archives/Public/www-patentpolicy-comment/2001Nov/0014.html),
> a Working Group has the option of soliciting prior art from the public
> and using this prior art to invalidate a patent which reads on a W3C
> specification.  Since a Working Group has the option of soliciting prior
> art from the public and using this prior art to invalidate a patent
> which reads on a W3C specification, this proposed patent policy should
> recognize and include this option in Section 5.
> 
>    A. Sub-Section 5.2: PAG Procedures
> 
> As I stated in the above paragraph, PAGs should have the option of
> soliciting prior art from the public and filing a reexamination request
> or declaratory judgment action to invalidate a patent covering a W3C
> specification or standard.  Since PAGs should have the option of
> soliciting prior art from the public and filing a reexamination request
> or declaratory judgment action to invalidate a patent covering a W3C
> specification or standard, Sub-Section 5.2 should explicitly include
> this option in its charter.  Since Sub-Section 5.2 should explicitly
> include this option in its charter, Sub-Section 5.2 should be rewritten
> as follows:
>     ...  The charter should include:
> 
>     * clear goals for the PAG, especially a statement of the question(s)
>       the PAG is to answer *and whether or not the PAG should solicit
>       prior art from the public to invalidate the blocking patent*;
> 
>     * duration (maximum 90 days); ...
> 
> Filing a reeamination request or declaratory judgment action to
> invalidate a blocking patent will have a deterrent effect on
> recalcitrant patent owners.  Patent owners spend at least US$10,000 to
> prosecute a national patent application to issue.  Patent owners spend
> many times this amount to obtain patents in other nations.  After
> obtaining these patents, most patent owners license these patents to
> generate additional revenues.  Since most patent owners license these
> patents to generate additional revenues they do not want these patents
> invalidated.  Since a patent can be invalidated or significantly
> narrowed in scope in a reexamination request or declaratory judgment
> action, most patent owners prefer to avoid reexamination requests and
> declaratory judgment actions.  Since most patent owners prefer to avoid
> reexamination requests and declaratory judgment actions, filing a
> reeamination request or declaratory judgment action to invalidate a
> blocking patent will have a deterrent effect on recalcitrant patent
> owners.
> 
> Even soliciting prior art from the public will have a deterrent effect
> on recalcitrant patent owners.  Prior Art searches to invalidate a
> patent are expensive, even more expensive than obtaining a patent.
> Since prior art searches are so expensive, most accused infringers
> prefer to license a patent rather than litigate a patent infringement
> action.  However, by soliciting prior art from the public and posting it
> to the PAG's or Working Group's website, the PAG can provide accused
> infringers with a comprehensive prior art search for free.  By providing
> accused infringers with a comprehensive prior art search for free, the
> PAG encourages accused infringers to litigate rather than license a
> patent owner's patent.  Since the PAG encourages accused infringers to
> litigate rather than license a patent owner's patent, more accused
> infringers will litigate a patent owner's patent.  By causing more
> accused infringers to litigate a patent owners patent, the PAG increases
> the probability that the patent will be invalidated or significantly
> narrowed.  By increasing the probability that the patent will be
> invalidated or significantly narrowed, the PAG discourages the patent
> owner from demanding RAND licensing for its patents.  By discouraging
> the patent owner from demanding RAND licensing for its patents,
> soliciting prior art from the public has a deterrent effect on patent
> owners unwilling to RF license their patents.
> 
> Since filing a reexamination request or declaratory judgment action or
> even simply soliciting prior art from the public has a deterrent effect
> on patent owners unwilling to RF license their patents, this proposed
> patent policy should grant PAGs the power to file execute these actions.
> 
>     B.  Sub-Section 5.3: PAG Conclusion
> 
> I object to parts 3 and 4. because they open the door to allowing patent
> owners to RAND license their patents which cover W3C specifications or
> standards.  In other words, parts 3. and 4. allow patent owners to slip
> RAND licensing into this proposed patent policy.  Since these parts
> allow patent owners to slip RAND licensing into this proposed patent
> policy, I think the offending clauses in parts 3. and 4. should be
> deleted.
> 
> The last clause of part 3. should be deleted.  The last clause of 3.
> states:
> 
>      ... or the terms under which acceptable licensing may be available.
> 
> This proposed patent policy only discusses RF licensing.  Since this
> proposed patent policy only discusses RF licensing, the only other
> "terms under which acceptable licensing may be available" is RAND
> licensing.  Since the only other "terms under which acceptable licensing
> may be available" is RAND licensing, the last clause of part 3. allows
> PAG to recommend and/or adopt RAND licensing for W3C specifications and
> standards.  Since the last clause of part 3. allows PAG to recommend
> and/or adopt RAND licensing for W3C specifications and standards, it
> should be deleted.  In other words, part 3. should be rewritten as
> follows:
> 
>     3.  The Team should seek further information and evaluation,
> including
>         but not limited to evaluation of the patents in question.
> 
> Part 4. explicitly allows the PAG to recommend and/or adopt RAND
> licensing for W3C specifications and standards.  The first sentence of
> part 4. states:
> 
>     4. The specification under development should be produced on RAND
>   (reasonable and non-discriminatory) terms, either at W3C or some
>   other body.
> 
> Since part 4. explicitly allows the PAG to recommend and/or adopt RAND
> licensing for W3C specifications and standards, it should be deleted.
> 
> As I stated in 3.(i) of my October 10, 2001, comments (see
> http://lists.w3.org/Archives/Public/www-patentpolicy-comment/2001Oct/1398.html)
> and "B. The Patent Policy Working Group is pro-RAND Licensing" of my
> November 06, 2001, comments (see
> http://lists.w3.org/Archives/Public/www-patentpolicy-comment/2001Nov/0014.html),
> RAND Licensing will destroy RF Licensing because Members will always
> find an excuse why their patents should be RAND Licensed.  Since RAND
> Licensing will destroy RF Licensing because Members will always find an
> excuse why their patents should be RAND Licensed, the only way for the
> W3C to ensure that Members continue RF Licensing their patents is to
> prohibit Members from RAND Licensing their patents.  Since the only way
> for the W3C to ensure that Members continue RF Licensing their patents
> is to prohibit Members from RAND Licensing their patents, this proposed
> patent policy must prohibit RAND Licensing.  Since this proposed patent
> policy must prohibit RAND Licensing, part 4. should be deleted.
> 
> Sincerely yours,
> 
> Daniel E. Maddux
>

Received on Thursday, 21 March 2002 06:05:37 UTC