Before the United States Department of Justice and United States Federal Trade Commission

Joint Roundtables on Competition and Intellectual Property Law and Policy in the Knowledge-Based Economy: Standards and Intellectual Property: Antitrust Law and Patent Landscapes

Supplemental Comments

Daniel J. Weitzner
Technology and Society Domain Leader

World Wide Web Consortium

6 November 2002
Washington, DC USA

I have already had the opportunity to present my views before this series of roundtables. In these supplemental comments, I would like address one factual question that arose during the 6 November session on "Standard Setting Organizations: Evaluating the Anticompetitive Risks of Negotiating Intellectual Property Licensing Terms and Conditions Ex Ante." Moderator questions sought to probe first, the degree of 'holdup' that exists as a result of the use of patent rights in standard-setting processes, and second, the appropriate responses and remedies to such holdup to the extent that it exists. Several roundtable participants suggested that holdup was a very small problem, while other worried that it was at least potentially significant.

The experience over the last five years at the World Wide Web Consortium demonstrates that patent holdup has been a real problem, introducing delay, inefficient allocation of resources intended for innovation, and the possibility for individual patent holders to exercise unjustified control over the design of fundamental technology infrastructure on which the entire marketplace depends. In quantitative terms, at least five of our technology design efforts suffered material delay or required substantial investment of resources to resolve problems with potentially blocking patents. Work on Platform for Privacy Preferences (P3P), XML Linking (Xlink), Scalable Vector Graphics (SVG), Synchronized Multimedia Integration Language (SMIL) and Voice Extensible Markup Language (VoiceXML) was all, in one way or another, held up with patent-related problems. Those five holdups represent roughly 10% of our overall standardization activity. This percentage is striking in comparison with the figures cited by the Telecommunications Industry Association (TIA), observing only a 'handful' of holdups in the course of over 600 standards. The fact that there at least one order of magnitude difference in these estimates of the degree of holdup calls for some explanation. Inasmuch as TIA is involved primarily in standards for a relatively mature industry while W3C's role is to set standards for a young and more fast-moving technology environment, perhaps holdup is more likely to happen at the leading edge of technology where basic design and basic business relationships are much more in contention.

Thank you for the opportunity to submit these supplemental comments.