Patent Policy Working Group Face-to-Face Meeting Summary
15-17 October 2001
Cupertino, CA USA
The following members of the Patent
Policy Working Group attended the meeting:
- Steve Nunn (TOG)
- Scott Peterson (HP)
- Michele Herman (Microsoft)
- Mark de Luca (Microsoft)
- Alan Kotok (W3C)
- Ian Jacobs (W3C, scribe)
- Wanda Cox (Apple)
- Helene Workman (Apple)
- Barry Rein (W3C/Pennie and Edmonds)
- Tony Piotrowski (Philips)
- David Singer (IBM)
- Lisa Goldman (Sun)
- Carl Cargill (Sun)
- Bruce Perens (Software in the Public Interest/HP)
- George Tacticos (IBM)
- Danny Weitzner (Chair)
- Eben Moglen (Free Software Foundation, by phone, afternoon of 15
- Chuck Adams (IBM) (after 15:15pm 15 October)
- Tim Berners-Lee (16 October, part of afternoon)
- Susan Lesch (W3C, 17 October all day)
Note: order of participants above reflects rough seating order around
Summary of Main Issues Discussed
The purpose of this Face-to-Face meeting was to consider the direction in
which the draft Patent Policy should develop in light of both the W3C Member
and Public comments. Our discussion concentrated on the following issues:
- General reactions to Member and Public Comments
- Should W3C adopt a policy of producing on Royalty-Free (RF)
Recommendations or is a mix of RF and Reasonable Non-discriminatory (RAND)
terms, as proposed in the Last Call
Draft the correct approach?
- What would a RF-only Recommendation track look like, without making any
assumptions about whether a separate RAND track also exists?
- Discussion with W3C Director Tim Berners-Lee about general patent policy
- How will this WG respond to all of the Member and Public Comments?
- Conclusions: How will W3C as a whole decide on the final patent
Here is a summary the discussion of each issue:
1. General reactions to Member and Public Comments
Working group members were pleased that the Last Call
Draft attracted so much attention and felt, in retrospect, that extending
the comment deadline to accommodate the last minute increased attention to the
document yielded positive results. W3C Member comments reflected both specific
comments about the detailed operation of the policy, as well as some general
statements about the proper balance between RF and RAND. A number of Member
comments that arrived toward the end of the comment period reflected increased
support for RF approaches. The public comments drew the following
- Lots of independent/open source developers are strongly opposed to RAND
in any form.
- The characterization of the policy as a RAND policy reflects a
misunderstanding about the fact that the Last Call document proposed a mix
of RAND and RF requirements. Furthermore, many commenters assumed
incorrectly that W3C Recommendations come with a guarantee of royalty-free
implementation today. We believe that the policy as proposed would
strengthen the RF status of new W3C Recommendations produced in RF
- More education and explanation is needed by way of background to the
framework. Some comments indicated a misunderstanding of patents and how
patents covering standards will affect implementations compliant with the
- The developer community has a strong degree of trust in the integrity of
the W3C standards development process in general, though felt betrayed by
what they believe to be a sudden shift in policy. Some commenters
suggested that the Open Source community should/would 'fork' to the Web
standards process in order to produce standards that would be RF. Working
Group (WG) members consider the trusted relationship between W3C and the
developer community to be important to the success of W3C's mission.
- Many developers working in Open Source environments feel threatened by
the proposed policy. The question of how software developed under the
variety of open source and free software licenses would fare under RF or
RAND licenses is an important on that must be explored.
- Whatever policy W3C chooses, more effort must be put into educating the
developer community about the complexity of patent licensing issues.
2. RF or RAND or mixture?
The policy proposed in the Last Call
Draft attracted significant attention from both Member and Public
comments. Though many other issues were raised, particularly by W3C Members
who have been studying the policy for some time, we felt that we had to
address the basic RAND/RF balance in the policy before we could address more
detailed comments. Some WG members expressed the view that RAND standards
development is not a useful track for W3C, while others believe that the
current balance between RAND and RF in the Last Call should be maintained.
Those in favor of RF either exclusively or as the general rule made the
- World Wide Web and Internet specifications have generally been
implemented on a RF basis until now. The highly distributed development
environment must be preserved
- Mixing RF and RAND at W3C would create too much confusion about the
licensing status of any particular W3C specification, so we should stick
with the RF model.
- Adding any licensing fee to the cost of producing software, where the
marginal cost is near zero to start, would create unacceptable burdens on
the production and distribution of Web software with the result that
- Open source implementations of RAND standards are difficult, if not
impossible, to imagine. The Web would be hurt without the substantial
contribution of open source development efforts. Some argued that any fee
charged, even under Reasonable terms would discriminate against open
source developers and thus violate the non-discrimination requirement
stated in the Last Call draft.
Those in favor of retaining the mixed RAND and RF model made the following
- Disallowing technologies which may only be available for a fee (RAND
terms) would deny the Web access to the best technology available.
Therefore the RAND avenue should be left open to assure freedom of
- If W3C adopts an RF-only model, then many important Web technology
standards may end up being developed at other standards bodies or industry
- A Royalty-free only policy will result in an increase in the amount of
time Working Groups will devote to specification development efforts that
will end up being abandoned or redone. Once an essential patent is
identified which is not available royalty free, the Working group must
determine if it can proceed, if it must engineer around the patent and/or
if it must abandon its efforts. If and when a patent with essential
claims is identified and licenses to such claims are not available Royalty
free, the Recommendation may need, depending on the details of the patent
policy adopted, to be withdrawn if the W3C has a Royalty-free only policy.
- Little has changed since the Last Call draft issued. We should revise
the Last Call draft in response to comments received, but not make any
fundamental change in the policy.
The Working Group did not reach a unanimous position on the correct role
for RAND or RF technology choices at W3C. As explained in point 6, this is one
of the policy questions we intend to pose to the W3C Advisory Committee, a
group that contains one representative from each W3C Member organization.
3. Exploration of RF-only Recommendation Track
In order to explore policy alternatives to the Last Call draft, the WG
discussed possible designs of a RF-only Recommendation track for W3C. Given
the substantial number of commenters (both Members and non-Members) who called
for a RF policy at W3C, the WG felt it worthwhile to explore what such a
policy would look like. The main issues that arose follow:
- Licensing Obligation:
- License obligation: Who will be bound to offer
essential patent claims on a RF basis: all W3C Members or just the
participants in the Working Group that produced the
- Opt-out: Should those bound to an RF license
commitment be allowed to make exceptions or 'opt-outs' to that
commitment by mentioning certain patents that are not available for RF
licensing? What happens if WG participant A contributes technology
patented by participant B without B's consent? With an opt-out could a
WG member sabotage the work of the group at the last minute (possibly
after years of work) by announcing that it holds a patent which is
essential but not available on a RF basis? One the other hand, is it
fair to require that WG participants make RF commitments before they
even know what technology will be included in the final
- Defensive Use: Should it be possible to withdraw a
license offered under this policy if that licensee later sues the
licensor for patent infringement on another technology?
- Disclosure obligations
- Should all W3C Members be obliged to disclose patents of which they
- If a Member makes a commitment to license patents essential to a
particular specification on RF terms, must that Member still disclose
- Decision-making: What happens when W3C becomes aware of essential patent
claims that are not available on an RF basis?
- Which of these options should a Patent Advisory Group be able to
- Ignore claim
- Design around claim
- Get more information, including legal opinion on validity and/or
- Stop the WG
- Does the PAG require W3C staffing beyond what is available
- Warranty: What promise, if any, does W3C make regarding possible
infringement liability for a Recommendation developed as
The WG did not attempt to reach consensus on either the desirability of a
RF policy, or on the precise terms suggested. We will continue to use the
structure developed, however, to evaluate both RAND and RF policy
4. Discussion with W3C Director Tim Berners-Lee
As part of the WG deliberations, Tim Berners-Lee joined the meeting (by
phone) to share his views about the W3C Patent Policy and the role of patents
in the development of the Web. His main points were:
- The RF way of working is important for the Web. From an historical
perspective, the Web was developed in an RF mode. The ethos was that
royalties were not charged, and the initial developers didn't patent
anything. When companies later joined in, then those companies didn't ask
for royalties either.
- People like this for lots of good reasons:
- When you have an RF assumption; uptake is very fast and there is a
level playing field between established businesses and smaller
- You get more consistent adoption, interoperability. There were many
similar systems before the Web. But the technologies in question
(HTTP/HTML) spread quickly. If you don't have RF, there may be a
greater risk of fragmenting the Web.
- The Advisory Committee meeting is approaching. Many people will have a
lot to say about the patent policy. To focus discussion, please lay out
options for the AC to consider.
- Granularity is an issue. People want to know "Is W3C RAND or RF?" We do
the world a favor by having simpler branding.
Following Tim's presentation, there was a general discussion about the
choices that face W3C, what impact different policy options would have on the
ability to enter new technology fields in which patents have historically
played a large role, and the degree to which W3C could vouch for the RF-nature
of a given Recommendation.
5. Process of responding to comments
W3C staff has begun the process of summarizing the issues raised in the
public comments. WG members agreed to divide up the task of completing this
job. W3C staff is in the process of preparing a complete issues list of all of
the Member comments received.
6. Conclusions: Process for making final decision on Patent Policy
This meeting reach two conclusions about the development of patent policy
- The Patent Policy Working Group now has a variety of tools which can be
assembled together to produce a sound patent policy for the Consortium.
The comments we have received, many of which reflect actual beta test
experience with implementing parts of the policy in W3C WGs, will help to
refine these tools.
- A final policy can only be developed after making some fundamental
choices about the goals of the policy. We will seek guidance on these
basic choices from the Advisory Committee through a series of questions to
be developed over the next week and presented to the November meeting of
the AC. Members and the public will have a chance to offer answers to
these questions by email.
Daniel J. Weitzner,
Chair, Patent Policy Working
Group; Technology and Society Domain Leader <email@example.com>
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