Patent Policy Working Group November 2002 Last Call Issues List

W3C Member1

W3C Member2

Multiple public comments

W3C Member4

You expressed concern that that patent policy should include both a RAND and an RF licensing option. We appreciate your concern and understand that RAND licensing has been common on standards organizations in technology sectors other than the World Wide Web. The Patent Policy WG, having considered this question in depth over the last several years, has concluded that the RF licensing requirement in the policy is the appropriate choice for the Web community as a whole. We believe that RF licensing has been important to the success of the Web to date and expect that to be the case in the future. This decision in support of the RF policy was made by a consensus of the Patent Policy Working Group. In order to account for unusual situations in which essential claims are not available on RF terms, we have included the ability for a Patent Advisory Group to recommend the inclusion of non-RF technologies in Recommendations. This exception provision will be included in the policy draft circulated shortly for AC Review. We do not plan any changes to the policy. If you do not agree with this approach, please contact us again no later than 18 March 2003. I would also point out that you will have the opportunity to raise this concern again directly when the patent policy is circulated to the Advisory Committee for AC Review and Director's Decision.

W3C Member1

W3C Member2

Multiple Public Comments

W3C Member3

You expressed concern that that patent policy provisions must be included in the W3C Membership agreement in order to be legally binding. We believe this is not necessary for the following reasons: First, each time a W3C Member joins a working group, the AC Representative from the Member organization will have to complete a call for participation. That call will include explicit reference to the Patent Policy and require that the AC representative manifest assent to it with respect to his/her organizations participation in the Working Group. Second, the Member agreement contemplates that existence of additional documents which detail the rules for participating in W3C activities. The main operative document is the Process Document. We expect that when the patent policy is finalized, the Process Document will link to it as a normative reference governing W3C activities. As we believe that these two measures address your concern, we do not plan any changes to the policy. If you do not agree with this approach, please contact us again no later than 3 February 2003.

W3C Member3

W3C Member7

agreed to at 6 Jan 2003 telecon

You suggested that the RF licensing commitment should be binding on all W3C Members, not just the participants in the WG responsible for the Recommendation. Your main argument appears to be that a Membership-wide commitment will provide greater licensing certainty for implementers and minimize encumbrances on W3C Recommendations. The PPWG discussed this issue extensively over the last year. Our discussions also supported the notion that a Membership-wide commitment would lead to greater certainty for implementers. However, we felt that imposing such a requirement on all W3C Members would raise the cost of Consortium membership unacceptable high without realizing comparable benefits. Comments from the PPWG and other Members have suggested that many Members participate intensively in a select number of WGs, but pay no attention to other activities. If we applied a Membership-wide RF licensing requirement, then Members would have to track the developments in every WG in order to ascertain whether or not they have patent rights to consider excluding. We chose the current policy balance in order to encourage Members to continue their affiliation with W3C even if they do not participate in all Activities of the Consortium. In addition to our concern about the burden on Members, we believe that limiting the licensing requirement to those who participate in developing a particular specification is likely to obtain RF rights from those who are most likely to have Essential Claims, the participants themselves. We also expect that the ability to attach reciprocity conditions on RF licenses issues under this policy (sec 3(4)) will help extend the RF licensing terms beyond just WG participants to all who implement a given Recommendation. Having discussed your concern, the PPWG believe that we struck the correct balance between licensing certainty and minimizing burdens on W3C Members who do not participate in either the development or implementation of a given technology. We plan to leave this portion of the policy as it is in the current draft.

Response to Member3

Response to Member7

W3C Member3

Agreed to at 6 Jan 2003 telecon

Response to Member3

You pointed out that the working of 5.3(3), one of the options that the PAG might adopt, could be read to mean that the PAG might adopt or suggest licensing terms in violation of the W3C RF licensing requirements spelled out in the policy. This is not what we intended and thank you for pointing it out. We will make an editorial clarification to 5.3(3) to indicate that the Team & PAG would be seeking licensing terms that are consistent with the W3C RF requirements of the Patent Policy, not some other terms. We appreciate your comments on the draft and will respond to the other issues you have raised in the coming weeks. If you are not satisfied with this response, please write back by 14 January 2003.

W3C Member3

Agreed to at 6 Jan 2003 Telecon

Response to Member3

W3C Member3

Agreed to a 6 Jan 2003 telecon

Response to Member3

W3C Member3

with response to Member3

You expressed concern that the time period over which participants have a commitment to provide RF licenses was unclear between section 2.1 and 3(9). Our intent was to indicate that the participant has the obligation to offer a license for the life of the patent unless the Recommendation in question is rescinded. Hence, the next draft will clarify the distinction between the length of the obligation to provide licenses (2.1) and the duration of license required (3.9). If you do not agree with this approach, please contact us again no later than 18 March 2003.

W3C Member3

with response to Member3

Thanks again (again) for your Last Call comments on the draft RF Patent Policy. We have noted one of your comments are Issue L10[1] on the Last Call issues list and have this response: You expressed a question about the meaning of the term 'interim license.' On reflect, we have concluded that an interim license is not necessary so we have removed the provision altogether. If you do not agree with this approach, please contact us again no later than 18 March 2003.

W3C Member3

with response to Member3

You expressed concern that the disclosure obligation should be binding on all W3C members, not just those who receive the disclosure request. The PPWG has decided not to adopt this suggestion as we believe it places to great a burden on W3C members who are not participating in a given WG and is not likely to produce sufficient benefit in return. We have provided, however, that the disclosure request be placed at the front of each specification draft, so that we believe the disclosure request will reach those who are likely to have relevant knowledge. We have chosen to target disclosure obligations to those who actually examine specifications in question, rather than requiring all W3C members to conduct patent searches for all specifications under development at any moment. We believe that concentrating the disclosure obligation on those who are in the relevant WG and those who actually look at the specification will yield the bulk of relevant disclosures. We concluded that if we expanded the disclosure obligation more broadly that we might discourage Membership in W3C without gaining significant additional disclosure information. If you do not agree with this approach, please contact us again no later than 18 March 2003.

W3C Member3

with response to Member3

You proposed that the disclosure obligation for unpublished, pending patent applications should include all applications, not just those developed based on material from the relevant specification. We have noted considerable difference of opinion on this matter. Other Members have proposed eliminating the obligation altogether. Hence, we have elected to leave the provision as it stands. We believe that requiring disclosure where applications are actually being developed based on W3C material will yield disclosure of the most relevant claims. We note also that if that patents issue then the participant will have an obligation to license essential claims on an RF basis. If you do not agree with this approach, please contact us again no later than 18 March 2003.

W3C Member4

with response to Member4

You suggested that the policy not require disclosure of unpublished applications. As we noted in our response to another Member[3], this is an issue an which Members disagree. We feel that the compromise position in the policy adequately respects the proprietary interests of Members by allowing Members to avoid disclosing the actual text of the unpublished application. The policy as proposed only requires disclosure of the existence of the application. We do not plan any changes to the policy. If you do not agree with this approach, please contact us again no later than 18 March 2003. I would also point out that you will have the opportunity to raise this concern again directly when the patent policy is circulated to the Advisory Committee for AC Review and Director's Decision.

W3C Member5

BEA

with response to BEA and Member5

You expressed concern about the suitability of the Requirements Document as a trigger point for exclusion of patents. The PPWG agrees with your assessment that such documents may not adequately identify a unique set of Essential Claims. Hence, in the draft that we plan to circulate for AC Review, we will replace the ReqDoc with what we have identified as the Second Public Working Draft. We believe that this will lead to a more stable, predictable exclusion process. In addition to removing reliance on requirements documents, we have called for a 'Call for Exclusion' to be issued by WG chairs and staff contacts in order to alert AC Reps of upcoming exclusion deadlines with pointers to relevant documents. If you do not agree with this approach, please contact us again no later than 18 March 2003.

W3C Member5

BEA

with response to BEA and Member5

W3C Member5

with response to Member5

You suggested that the obligation to disclose unpublished applications should be satisfied if the participant leaves the WG. This suggestion is part of your larger concern that such disclosures would result in leakage of trade secrets. We believe that we have addressed that issue overall by provide two disclosure paths. A discloser may either disclose the actual text of the application or merely identify the portion of the specification to which the application is related. In discussing this issue again, the PPWG has concluded that the scope of this particular part of the disclosure obligation is an appropriate balance between the needs of the Membership as a whole for openness and the proprietary interests of individual members. The disclosure obligation for unpublished applications is already quite narrow, in that it only applies in cases where the application actually uses information from a specification to develop an application. The concern you stated that AC Reps might not be aware of exchanges between inventors and patent attorney's suggests that in many cases there would be no disclosure obligation at all as the AC would not be aware of the application. It is only the case where someone in the Member organization uses material from W3C WGs to craft applications on work actually going on in the standards-setting context that we are concerned about. We believe that it is reasonable to require disclosure there. If you do not agree with this approach, please contact us again no later than 18 March 2003. I'd also point out that you'll have the chance to raise this issue again if you see fit during the AC Review of the entire policy.

W3C Member5

with response to Member5

As part of your concern about the requirement to disclose the existence of pending, unpublished applications, you suggested that this disclosure ought to be limited to WG participants only. We have addressed your general concern about this requirement elsewhere.[2] On this aspect of the question, we do not believe that it would serve the fundamental need for patent disclosure identified by the PPWG to impose the limit you suggest. In particular, we do not want to encourage Members to sit outside a WG, watch the development of specifications, and file applications/amendments based on that information. While we believe that the vast majority of W3C Members would not engage in such a strategy, we believe it is important to be very clear that in the event that a Member were to take advantage of the W3C process in such a way, that disclosure is required. If you do not agree with this approach, please contact us again no later than 18 March 2003.

W3C Member5

W3C Member6

with response to Member5 and Member6

You indicated your opposition about the loss of licensing flexibility with position take in the 14 Nov 2002 Last Call draft to remove any RAND exception. The PPWG has decided to recommend to the AC that a narrow exception process be included in order to account for those situations in which the Membership and Director believe that there is a compelling reason to include technologies which do not meet the RF licensing requirements in the policy. The exception process is included in the 5 March 2003 WD[2] and will be circulated in essentially that form for AC Review.

W3C Member6

You requested that the deadline for exclusion of Essential Claims be changed from 60 to 90 days after the publication of the relevant document. In shifting from the Requirements document to an identified public working draft (likely, the second public working draft) we believe we have brought greater certainty to the exclusion process.[2] We are concerned that delaying the exclusion deadline by 3 months from the time that the WG actually publishes the relevant draft will add too much uncertainty to the process. The PPWG participants, many of whom will be responsible for responding to such exclusion requests, believe that the 60 day deadline is reasonable. Hence, we do not plan to include the extension you request.

W3C Member6

You suggested that the disclosure obligation ought to be limited to only the participants in a WG. This suggestion was motivated by a concern about administrative burden. In the latest draft of the policy we have included provisions to ease the administrative burden of the requirement. In particular, the policy now requires that " Disclosure requests other than those that appear in the specification itself should be directed to the AC Rep."[2] Given that all W3C Members have access to all WG Working Drafts, whether or not they are a participant in the group, we believe that the broader disclosure obligation remains important. We would not, however, that the disclosure obligation is only triggered when someone has actual knowledge of a likely essential claim. We do hope that the clarifications we have made based on your suggestion help to address your concern.