Date: Mon, 01 Oct 2001 20:28:08 -0700
From: Janet Daly
To: www-patentpolicy-comment@w3.org
Subject: W3C's Response to Public Comments on the Patent Policy Framework Working Draft
All;
This is the plain text version of W3C's Response to Public Comments on
the W3C Patent Policy Framework Working Draft. The Hypertext version,
with links, is available at:
http://www.w3.org/2001/10/patent-response
W3C is grateful for the feedback it has received from the developer
community on the Patent Policy Framework draft.
In response to requests from the public and W3C Member organizations,
W3C has decided to extend the review period (for both public and
Members) until 11 October 2001. This allows for an extension to collect
comments, and allows the Patent Policy Working Group to prepare for
their next face-to-face meeting, which begins on 15 October 2001.
Please note: due to the large number of comments received in the past
two days, the Team and Patent Policy Working Group will require extra
time to identify substantial comments and provide responses in kind.
Please send your comments on the proposed policy to:
www-patentpolicy-comment@w3.org
The archive of this list is available at:
http://lists.w3.org/Archives/Public/www-patentpolicy-comment/
As the proposed policy includes proposals such as:
* a requirement for disclosure provisions (Section 7);
http://www.w3.org/TR/2001/WD-patent-policy-20010816/#sec-disclosure
* a procedure for launching new standards development activities as
Royalty-Free Licensing Mode activities (sections 4
http://www.w3.org/TR/2001/WD-patent-policy-20010816/#sec-definitions
and 5);
http://www.w3.org/TR/2001/WD-patent-policy-20010816/#sec-mode
* a procedure for launching new standards development activities as
Reasonable and Non-Discriminatory (RAND) Licensing Mode
activities (also sections 4 and 5);
W3C would like to know if your opposition to or support for the policy
refers to all three of these proposals, or just some of them.
In the remainder of this message, W3C answers additional questions and
assumptions raised by recent comments:
1. What are the goals of the proposed policy?
2. Does the proposed patent policy represent a change in W3C
licensing policy?
3. Is this the end of of royalty-free licenses for W3C
Recommendations?
4. Is RAND licensing common for bodies like W3C?
5. Why wasn't this proposed policy announced more loudly?
6. Does W3C endorse software patents?
7. What happens next?
1. What are the goals of the proposed policy?
The W3C and the Patent Policy Working Group represent a diverse
range of opinions. This includes those who feel that all W3C
Recommendations should be Royalty-Free, and those who believe that
paying Reasonable and Non-Discriminatory (RAND) fees to implement
W3C Recommendations is sensible and even productive policy.
W3C recognizes that a Royalty-Free environment was essential to the
growth of the Web, and the contributions of the open source developer
community have been critical to its success. W3C also recognizes that
software patents exist (and patent issues have become more prevalent
with the growth of the Web), and ignoring them will do more harm than
good. W3C is working hard to reach consensus in an area where there
is an obvious tension, and to strike a balance among diverse
interests.
Some of the goals of the proposed policy are to ensure that:
1. 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.
2. Future work is not hindered because of Fear, Uncertainty, and
Doubt. The proposed policy is designed to promote better
decisions through disclosure of information. The expectation is
that information will allow a Working Group to proceed as is, to
work around a perceived patent obstacle, or to abandon work
entirely if perceived to be too encumbered by patents.
2. Does the proposed patent policy represent a change in W3C licensing
policy?
In the past two days, many people have expressed concern that the
proposed patent policy changes W3C's current licensing policy for
Recommendations. W3C has never had a stated licensing policy for
implementation of its Recommendations, so the proposed policy is
entirely new in this regard.
Many people have assumed that W3C grants a Royalty-Free license to
implementers of all W3C Recommendations, but this is not the case.
Indeed, W3C has already found itself in a situation where
implementers of a W3C Working Draft (the P3P specification, at
http://www.w3.org/TR/P3P) faced possible patent infringement
litigation by a patent holder who had participated in the Working
Group developing P3P. The immediate result was to bring P3P
development to a halt.
W3C then made a call to the developer community for prior art,
(http://www.w3.org/1999/05/P3P-PatentPressRelease) and conducted
a patent analysis. W3C's analysis
(at http://www.w3.org/TR/1999/NOTE-P3P-analysis-19991027)
concluded that there was no infringement. In response to several
similar situations in which fear, uncertainty, and doubt surrounding
patents confused or derailed W3C work, W3C felt that it would be
irresponsible to act as if software patents didn't exist (but
see point 6 below).
Current Version of Platform for Privacy Preferences:
http://www.w3.org/TR/P3P
Press Release Announcing Patent Investigation
W3C's Analysis of Patent Claim
http://www.w3.org/TR/1999/NOTE-P3P-analysis-19991027
What does the proposed policy change? It establishes a process that
requires people to disclose to a Working Group that a specification
in development may intersect with patented technology. The proposed
policy does not eliminate the risk that a patent holder somewhere may
claim that an implementer has infringed upon a patent. It does,
however, increase the chance that an informed Working Group will be
aware of this risk and may choose to accept it or work around it.
3. Is this the end of of Royalty-Free licenses
for W3C Recommendations?
No. The policy defines two licensing modes for a Working Group:
Royalty-Free and RAND. Will Working Groups ever operate in
Royalty-Free mode? The policy states that "[p]reservation of
interoperability and global consensus on core Web infrastructure
is of critical importance. So it is especially important that the
Recommendations covering lower-layer infrastructure be implementable
on a Royalty-Free basis." When a Working Group wishes to produce a
specification that is not Royalty-Free, the proposed policy requires
the charter to provide rationale for the choice of RAND.
The policy improves on the current W3C process by making licensing
assumptions explicit and enforcible. The reciprocity provisions
of the proposed Royalty-Free license structure would help ensure
that all implementers benefit from Royalty-Free licenses to patent
claims by any other implementer.
4. Is RAND licensing common for bodies like W3C?
Yes. A RAND license is common among standards organizations.
For instance, for the IETF's Internet Standards Process (Revision 3),
RFC 2026 section 10.3.2 says:
(C) Where the IESG knows of rights, or claimed rights under (A),
the IETF Executive Director shall attempt to obtain from the
claimant of such rights, a written assurance that upon approval by
the IESG of the relevant Internet standards track specification(s),
any party will be able to obtain the right to implement, use and
distribute the technology or works when implementing, using or
distributing technology based upon the specific specification(s)
under openly specified, reasonable, non-discriminatory terms. The
Working Group proposing the use of the technology with respect to
which the proprietary rights are claimed may assist the IETF
Executive Director in this effort.
The full section of RFC 2026 is at:
http://www.ietf.org/rfc/rfc2026.txt
For information about ETSI's IPR policy, refer to to section 6 of
Annex 6 of the ETSI directive, at:
http://portal.etsi.org/directives/
ANSI patent policy guidelines also involve RAND terms.
http://web.ansi.org/public/library/guides/ppguide.html
5. Why wasn't this proposed policy announced more loudly?
Some reviewers questioned whether this document had been announced,
and that a lack of announcement was deliberate. Please note that:
* The document was made public six weeks ago, and W3C invited
public comment at that time.
* W3C announced the publication on its home page as well as through
news syndication services.
In addition, at the same time the policy was published, W3C published
supplementary materials:
* Backgrounder for W3C Patent Policy Framework
http://www.w3.org/2001/08/patentnews
* Patent Policy Framework FAQ
http://www.w3.org/2001/08/16-PP-FAQ
These additional materials were written with both the developer and
general public in mind. We hope that they will be useful during the
extended comment period.
W3C acknowledges the frustration expressed by some developers at not
being able to comment on an earlier draft of the policy. Due to the
complexity of the issues, the process of developing a draft that the
Patent Policy Working Group felt reflected even a rough consensus of
its own views took longer than expected. The Patent Policy Working
Group is prepared to receive and respond to public comments before
the policy is finalized.
6. Does W3C endorse software patents?
W3C takes no position on the public policy questions surrounding
software patents The draft policy does attempt to answer this
question: In a world where patents exist and may be used to
constrain conformance to standards, how should W3C best proceed in
order to accomplish its mission? Even if a patent holder claims
that a patent is relevant to a W3C Recommendation and that party
offers a license, this does not mean that W3C (or anyone else)
shares the belief that the claim is valid, or that an implementer
has infringed upon it.
7. What happens next?
The W3C Process Document, at
http://www.w3.org/Consortium/Process-20010719/
governs what happens next.
In particular, the following will happen:
* The comments list will remain open. General comments are welcome;
comments referring to specific parts of the Patent Policy
Framework draft, at:
http://www.w3.org/TR/2001/WD-patent-policy-20010816/
are especially useful. You may find the supporting
materials listed in point 5 helpful.
* The Patent Policy Working Group will require time to process the
many comments received. Per [29]section 4.1.2 of the W3C Process
Document, the Patent Policy Working Group will be expected to
address all substantial comments or to document sustained
objections.
* Once it has processed review comments, the Patent Policy Working
Group will publish another public draft, which will be announced
on the W3C home page (where all W3C documents are announced).
Publication of that document will offer opportunities for public
review before any final document would be adopted.
