Patent Policy Working Group
Royalty-Free Patent Policy

W3C Working Draft 26 February 2002

This Version
Latest version
Previous version:
Daniel Weitzner, W3C/MIT, djweitzner@w3.org


This is the draft Royalty-Free patent policy for W3C.

Status of This Document

This draft Royalty-Free patent policy addresses a large number of issues raised by comments from W3C Members and the general public. However, there are several significant issues still to be decided by the Working Group. As such, this draft is still a work in progress. See the Change Log for a detailed summary of the unresolved issues and an overview of the changes between this document and previous versions.

As a public W3C Working Draft, this document may be updated, replaced, or obsoleted by other documents at any time. It is inappropriate to use W3C Working Drafts as reference material or to cite them as other than "work in progress". A list of all W3C technical reports can be found at http://www.w3.org/TR/.

Before the patent policy is finalized, at least one more public draft will be released for Last Call review. Following W3C Process for approving technical Recommendations, after that Last Call, we will prepare a final draft (Proposed Recommendation) for W3C Advisory Committee review, after which the Director will determine the final disposition of the policy.

Public comments on this draft will be instrumental in the Patent Policy Working Group's deliberations. Please send comments to either the public comment list <www-patentpolicy-comment@w3.org> or the W3C Member-only list <w3c-patentpolicy-review@w3.org>. Both the public and the Member (Member-only link) lists are archived.

Table of Contents

0. Overview

This patent policy describes:

  1. licensing goals for W3C Recommendations
  2. licensing obligations that Working Group participants will undertake as a condition of Working Group membership, along with means of excluding specific patents from those obligations
  3. the definition of a Royalty-Free license
  4. disclosure rules for W3C Members
  5. an exception handling process for situations in which the Royalty-Free status of a specification comes under question

1. Licensing Goals for W3C Recommendations

In order to promote the widest adoption of Web standards, W3C seeks to issue Recommendations that can be implemented on a Royalty-Free (RF) basis. Under this policy, W3C will not approve a Recommendation if it is aware that Essential Claims exist which are not available on Royalty-Free terms.

To this end, RF Working Group charters will include as a requirement that the specification produced by the Working Group will be implementable on an RF basis, to the best ability of the Working Group and the Consortium.

2. Licensing Obligations of Working Group Participants

The following obligations apply to all participants in W3C Working Groups. These obligations will be stated in each Working Group charter and in standard language that will appear in all calls for participation (appendixes 1 and 2, to do).

2.1. RF Commitment for all Working Group Participants

As a condition of participating in a Working Group, each W3C Member and invited expert agrees to make any Essential Claims it controls available on RF terms, as defined in this policy. With the exception of the provisions of section 2.2 below, this licensing commitment is binding on participants for the life of the patents in question, regardless of changes in participation status or W3C Membership.

2.2 Exclusion from RF Commitment

Under the following conditions, Working Group participants may exclude specific patents from the overall RF licensing commitment:

2.2.1. Exclusion with continued participation

Specific patents may be excluded from the RF licensing commitment by a participant who seeks to remain in the Working Group only if that participant discloses specific patents that will not be licensed on RF terms within 60 days after the publication of the Working Group's requirements document. A participant who excludes patents may continue to participate in the Working Group.

If any claims are made essential by the final Recommendation as a result of subject matter not present or apparent in the requirements document, the participant may exclude these new Essential Claims, but only these claims, by using this exclusion procedure within 60 days after the publication of the Last Call Working Draft. After this point, no claims may be excluded. (Note that if material new subject matter is added after Last Call, then a new Last Call draft will have to be produced, thereby allowing another exclusion period for 60 days after that most recent Last Call draft.)

2.2.2. Exclusion and resignation from the Working Group

A participant may resign from the Working Group within 60 days after the publication of the requirements document and be excused from all licensing commitments.

If a participant leaves the Working Group later than 60 days after the publication of the requirements document, that participant is only bound to license claims that are essential based on subject matter contained either in the requirements document or the latest Working Draft published before the participant resigned from the Working Group. Departing participants have 60 days after their actual resignation from the Working Group to make such exclusions.

2.2.3. Joining an already established Working Group

Exclusion for participants who join a Working Group more than 60 days after the publication of the requirements document must exclude Essential Claims covered in the requirements document immediately upon joining the Working Group.

3. Royalty-Free Licensing Requirements

A Royalty-Free license shall mean a non-assignable, non-sublicensable license to make, have made, use, have used, sell, have sold, offer to sell, import, and distribute and dispose of implementations of the Recommendation that:

1. shall be available to all implementers of the specification worldwide, whether or not they are W3C Members;

2. shall extend to all Essential Claims owned or controlled by the licensor and its Affiliates;

3. may be limited to implementations of the Recommendation, and to what is required by the Recommendation;

4. may be conditioned on a grant of a reciprocal RF license (as defined in this policy) to all Essential Claims owned or controlled by the licensee. A reciprocal license may be required to be available to all, and a reciprocal license may itself be conditioned on a further reciprocal license from all.

5. may not be conditioned on payment of royalties, fees or other consideration;

6. may be suspended with respect to any licensee when licensor is sued by licensee for infringement of patents used to implement any W3C Recommendation;

7. may not impose any further conditions or restrictions on the use of any technology, intellectual property rights, or other restrictions on behavior of the licensee, but may include reasonable, customary terms relating to operation or maintenance of the license relationship such as the following: choice of law and dispute resolution;

8. shall not be considered accepted by an implementer who manifests an intent not to accept the terms of the Royalty-Free license as offered by the licensor.

License term:

9. The RF license shall be made available by the licensor as long as the Recommendation is in effect.

10. If the Recommendation is rescinded by W3C, then no new licenses need be granted but any licenses granted before the Recommendation was rescinded shall remain in effect.

11. An interim license shall be made available 60 days after the publication of the requirements document. This interim license will expire 60 days after the publication of the Proposed Recommendation, or 90 days after the expiration date of the Working Group charter, whichever comes first.

4. Disclosure

Disclosure is required when an Advisory Committee representative (AC rep), or any other party in a Member organization who received the disclosure request, has actual knowledge of likely essential claims with respect to a specification. Anyone in a Member organization who has such knowledge must inform that AC rep. Where disclosure is required, the AC rep will do so.

Exemption for those making a Royalty-Free licensing commitment: Any W3C Member (whether participating in the Working Group or not) who makes a commitment to license any essential claims to the Recommendation on a Royalty-Free basis, need not make any disclosure for that Recommendation.

4.1. Disclosure Requests

Disclosure requests, seeking information described in 4.0, will be included in the "Status of This Document" section of each technical report as it reaches each new maturity level (requirements document, Working Draft, Last Call Working Draft, Candidate Recommendation, Proposed Recommendation, Recommendation).

4.2. Disclosure contents

Disclosure statements must include

  1. patent number or patent application identification, but need not mention claims
  2. the Working Group and/or Recommendation to which it applies

The disclosure statements should be sent to <patent-issues@w3.org>.

4.3. Good Faith Disclosure Standards

Satisfaction of the disclosure requirement does not require a patent search, or any additional analysis of the relationship between the patents that the Member organization holds and the specification in question.

Disclosure of third-party patents is only required where the Advisory Committee representative or Working Group participant has been made aware that the third party patent holder has asserted that its patent contains claims which would necessarily be infringed in order to implement the W3C Recommendation, unless such disclosure would breach non-disclosure obligations.

4.4. Timing of Disclosure Obligations

The disclosure obligation is an ongoing obligation that begins with the call for participation. Complete disclosure may not be possible until later in the process, when the design is more complete, however, so Members are only expected to disclose what is known based on the current state of the specification. Disclosure as soon as practically possible is required.

The disclosure obligation terminates when the Recommendation is published, or when the Working Group terminates.

4.5. Disclosure of Laid-Open or Published Applications

In the case of laid-open or published applications, the Member's good faith disclosure obligation extends to unpublished amended and/or added claims that have been granted by relevant legal authorities and that the Member believes may contain Essential Claims. To satisfy the disclosure obligation for such claims, the Member shall either:

  1. disclose such claims, or
  2. identify those portions of the W3C specification likely to be covered by such claims.

4.6. Disclosure Obligations of Invited Experts

Invited experts participating in a Working Group must comply with disclosure obligations to the extent of their own personal knowledge.

4.7. Disclosures to Be Publicly Available on Recommendation Track

Patent disclosure information for each specification on the Recommendation track will be made public along with each public Working Draft issued by the Working Group. A complete report on patent disclosures made with respect to a given specification must be available to the public as soon as a Candidate Recommendation is published. If the specification moves directly to Proposed Recommendation after Last Call Working Draft, then the disclosures are made public along with the Proposed Recommendation.

5. Exception Handling

In the event a patent has been disclosed that may be essential, but is not available on RF terms, then a Patent Advisory Group (PAG) will be launched to resolve the conflict. The PAG is an ad-hoc group constituted specifically in relation to the Working Group with the conflict, and will meet in order to help the Consortium find a resolution to the identified problem and then dissolve. During the time that the PAG is operating, the Working Group may continue its technical work within the bounds of its charter.

A PAG may also be convened in the event Essential Claims are discovered after a Recommendation is issued. A PAG convened in this manner may advise the Consortium to rescind the Recommendation. Such advice will be forwarded for Advisory Committee review and Director's decision. In this case the PAG will be open to any interested Member, though the PAG may choose to meet without the holder of the Essential Claims in question.

5.1. PAG Composition

The PAG is composed of:

W3C Member participants in the PAG should be authorized to represent their organization's views on patent licensing issues. Any participant in the PAG may also be represented by legal counsel, though this is not required. Invited experts are not entitled to participate in the PAG, though the PAG may chose to invite any qualified experts who would be able to assist the PAG in its determinations.

W3C expects to provide permanent legal staffing to all PAGs in the form of a Team member who develops experience with the PAG process and patent issues at W3C.

5.2 PAG Procedures

The PAG will be convened by the Working Group Team contact, based on a charter developed initially by the Team. The charter should include:

The PAG may seek an extension of time from the Director, but must state a reason for extension and report on progress to date.The PAG, once convened, may propose changes to its charter as appropriate, to be accepted based on consensus of the PAG participants. The Team will choose a member of the PAG to serve as Chair.

5.3. PAG Conclusion

After appropriate consultation, the PAG may conclude:

  1. The initial concern has been resolved, enabling the Working Group to continue.
  2. The Working Group should be instructed to consider designing around the identified claims.
  3. The Team should seek further information and evaluation, including but not limited to evaluation of the patents in question or the terms under which acceptable licensing may be available.
  4. The specification under development should be produced on RAND (reasonable and non-discriminatory) terms, either at W3C or some other body. Note that there is not yet any process for developing or issuing RAND specifications. Therefore if a PAG makes a recommendation to proceed on RAND terms, Advisory Committee review and Director's decision will be required. It is also possible that a PAG could recommend that the work be taken to another organization.
  5. The Working Group should be terminated.
  6. The Recommendation (assuming it has already been issued) should be rescinded.

In any case, the PAG must state its reasons in a W3C document to become public with the next public draft of the specification.

Appendix 1 - Standard patent language for calls for participation

To do.

Appendix 2 - Standard patent language for Working Group Charters

To do.

Appendix 3 - Standard patent language for W3C Recommendations

To do.

Appendix 4 - Model charter for Patent Advisory Group

To do.

Appendix 5 - Definition of Essential Claims

"Essential Claims" shall mean all claims in any patent or patent application with an effective filing date within one year and one day after the publication of the first public Working Draft, in any jurisdiction in the world, that a Member (or a licensor or licensee, with reference to entities other than Members) owns, or under which a Member (or a licensor or licensee) has the right to grant licenses without obligation of payment or other consideration to an unrelated third party, that would necessarily be infringed by implementation of the Recommendation. A claim is necessarily infringed hereunder only when it is not possible to avoid infringing it because there is no non-infringing alternative for implementing the required portions of the Recommendation. Existence of a non-infringing alternative shall be judged based on the state-of-the-art at the time the specification becomes a Recommendation.

The following are expressly excluded from and shall not be deemed to constitute Essential Claims:

  1. any claims other than as set forth above even if contained in the same patent as Essential Claims; and
  2. claims which would be infringed only by:
  3. design patents and design registrations.

For purposes of this definition, the Recommendation shall be deemed to include only architectural and interoperability requirements and shall not include any implementation examples or any other material that merely illustrates the requirements of the Recommendation.

Change Log and Unresolved Issue Summary

The links to Member issues and decisions D4-D18 in the following paragraph are W3C Member-only.

Member issues: The document is intended to represent decisions on all matters currently decided in the Major Decisions issues list, current through the 19 February 2002 Patent Policy Working Group teleconference. This document leaves (without prejudice) the following issues unaddressed:

In response to public comments, the following major changes were made:

Changes from 16 August 2002 Last Call draft to 22 February 2002 Public Working Draft

The following major changes to the policy have been made between the 16 August 2001 Last Call draft and the 26 February 2002 Public Working Draft:


World Wide Web Consortium Process Document, I. Jacobs, Editor. W3C, 19 July 2001. The latest version of this document is http://www.w3.org/Consortium/Process.


W3C's evolving patent policy has been informed by help, comments, criticism, and occasional rants by W3C Members, many voices from the independent developer and Open Source/Free Software communities, W3C Advisory Committee representatives, the W3C Team, the W3C Advisory Board, and participants in the Patent Policy Working Group. Those who have participated in the beta testing of this policy, leading up to the W3C Current Patent Practice document, have made invaluable contributions to shaping a policy that will actually contribute to achieving W3C's mission.

Every participant in the Patent Policy Working Group has made substantial contributions to this document. Since its inception, the following individuals have participated in the group:

Jean-François Abramatic (W3C), Chuck Adams (IBM), Martin Ashton (Reuters, Ltd.), Carl Cargill (Sun Microsystems), Wanda Cox (Apple Computer), W. Mike Deese (Microsoft), Mark DeLuca (Woodcock Washburn LLP for Microsoft), Don Deutsch (Oracle), Tom Frost (AT&T), Michael Gelblum (Oracle), Mari Georges (ILOG S.A.), Lisa Goldman (Sun Microsystems), Toon Groenendaal (Philips Electronics), Michele Herman (Microsoft), Richard J. Holleman (IBM), Ian Jacobs (W3C), Glen Johnson (Nortel Networks), Jerry Kellenbenz, (Apple Computer), Alan Kotok (W3C), Gerry Lane (IBM), Arnaud Le Hors (IBM), Susan Lesch (W3C), Steve Nunn (The Open Group), Scott K. Peterson (Hewlett-Packard), Tony E. Piotrowski (Philips Electronics), Chuck Powers (Motorola), Barry Rein (Pennie & Edmonds for W3C), Gib Ritenour (Nortel Networks), Michael Schallop (Sun Microsystems), Kevin Smith (Nortel Networks), George Tacticos (IBM), Daniel Weitzner (W3C), George Willingmyre (GTW Associates), Helene Plotka Workman (Apple Computer). Invited experts are Eben Moglen (Free Software Foundation), Bruce Perens (Software in the Public Interest), Larry Rosen (Rosenlaw.com for Open Source Initiative).