W3C's Response to Public Comments on the Patent Policy

[ Thanks to Svartalf for this link. ]

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.