Daniel Weitzner, Patent Policy Working Group Chair <djweitzner@w3.org>, +1.617.253.8036
20 August 2001
This document provides a brief overview of the W3C Patent Policy Framework, published 16 August 2001 by the W3C Patent Policy Working Group (PPWG). This proposal for substantial changes to the W3C policy on patents has entered a Last Call review period that closes 30 September 2001. We are seeking comments on the policy from W3C Members as well as any interested members of the Web community.
You may wish to refer to the Patent Policy FAQ, another informative document produced by the PPWG, and the Process Document, a description of the W3C organization and how it functions.
Web technology - in fact, the very Web itself - has developed over the last decade through an unprecedented burst of entrepreneurial energy and global cooperation. Competitive forces led to innovative technology, and a cooperative spirit produced global interoperability standards at an extremely rapid pace. Both the competitive tension and cooperative standards development occurred, until very recently, in a market environment without any significant patent licensing constraints on developers. All of those developers, large and small, who contributed to the Web as we know it were able to deploy Web-standards technology without having to pay licenses fees. What is more, huge commercial markets have developed and prospered without reliance on license fees as a revenue source.
The second decade of the Web has already demonstrated that patents will be a factor in the ongoing development of the Web infrastructure. A variety of factors including:
suggest that patent processes will increasingly affect the Web. These factors make it clear that the W3C must have an effective policy to address the inevitable increase in patent issues that will come before the W3C Membership and the development community as a whole.
W3C Working Groups have traditionally operated with the tacit assumption that the Recommendations they produce could be implemented without payment of patent license fees. To date, W3C has not been aware of any non-free patent that is essential to the implementation of any existing W3C Recommendation.
Until recently, W3C's regular practice for a few years was to ask its Members to provide patent disclosures if the member believed the patent was relevant to work underway at W3C, or to work about to be undertaken (such as the development of a technology for vector graphics). These disclosures, described in the W3C Process, were required for participation in a W3C Working Group; other disclosures were made either because a patent was recently discovered or granted in a W3C work area.
Over time, it became apparent to W3C that this was not an adequate mechanism for successful production of open specifications. Most Working Groups operated under the assumption that there were no licensing requirements for implementing a specification, but problems can also arise when assumptions of participants differ. It was only when there were conflicts, notably the case of the patent claim against the Platform for Privacy Preferences (P3P) specification, that the issue truly came to the fore.
W3C successfully refuted the patent claim against P3P. Soon after, W3C Members assembled a Working Group to develop a new W3C patent policy that would deal directly with the tension between Web architecture in an Internet environment long known for its openness, and the realities of patent and licensing issues. The PPWG began meeting in order to develop a framework that could begin to address these issues and bring them to light.
While PPWG participants represent a wide range of positions, and occasionally maintain opposing views, the group articulated these consensus points as the basis for W3C policy:
Based on these four principles, the Patent Policy Framework describes how W3C Working Groups are to operate with regards to patents. A primary goal of the framework is that, through it use, W3C may provide as much information as possible to enable W3C Members and developers to make informed decisions about their own Activity.
At the time that an Activity proposal is sent for Member review, it will specify the patent licensing mode in which a Working Group is proposed to operate. One mode is reasonable and non-discriminatory (RAND); the second mode is royalty free (RF).
The theory behind the selection of RAND or RF for a Working Group is that, on the one hand, there are aspects of the infrastructure that are sufficiently central that they should be designed to implementable without license fees. That is, implementers may choose to use licensed technology, but the W3C Recommendation would not require them to do so.
On the other hand, there are other technologies, typically higher level, where it might be appropriate to accept fee-bearing requirements in a Recommendation. It is worth restating that, as of today, W3C is not aware of any fee-based license required for any of its Recommendations. Thus, there is an established history of RF.
Fear, uncertainty and doubt surrounding patents related to technical standards have been shown to be an unacceptable barrier to widespread implementation. The Patent Policy Framework aims to require clear disclosure of essential patents and predictable licensing terms for patents needed to comply with W3C Recommendations.
W3C Members would have three types of obligations, as described by the proposed patent policy framework. The first maintains the current policy; the second and third add more information and disclosure requirements.
Even with these disclosure and licensing commitments in place, conflicts may still arise. If any essential patents are identified, then a RAND group would not meet its charter requirements unless each owner of essential patents has committed to offer RAND licenses. Similarly, an RF group would not meet its charter requirements unless each owner of an identified essential patent has committed to offer RF licenses.
The process for remedying conflicts in these cases (i.e. a person in a RAND group refuses RAND licensing on a patent essential for the implementation of a specification) involves convening a Patent Advisory Group, or a PAG. The PAG consists of representatives from all W3C Members participating in the Working Group, and W3C Team members. Together, the PAG members work on resolving the variance.
W3C Members Apple, AT&T, Hewlett-Packard, IBM, ILOG, Microsoft, Nortel Networks, The Open Group, Philips Electronics, Reuters, and Sun worked on this draft together with W3C Team members.
W3C felt that, after having had two previous drafts reviewed by the Membership, it was time to make the document available for public review. As the policy has ramifications on the Web community at large, and as the Web Community have consistently helped W3C in its efforts, views from this diverse community are essential. Comments may be sent to a public archive; the Working Group will prepare responses to issues raised.
The W3C was created to lead the Web to its full potential by developing common protocols that promote its evolution and ensure its interoperability. It is an international industry consortium jointly run by the MIT Laboratory for Computer Science (MIT LCS) in the USA, the National Institute for Research in Computer Science and Control (INRIA) in France and Keio University in Japan. Services provided by the Consortium include: a repository of information about the World Wide Web for developers and users, and various prototype and sample applications to demonstrate use of new technology. To date, over 520 organizations are Members of the Consortium. For more information see http://www.w3.org/