Response to Public Comments on the W3C Patent Policy Framework Working Draft

W3C is grateful for the feedback it has received from the developer community on the Patent Policy Framework draft.

In response to requests from the public and W3C Member organizations, W3C has decided to extend the review period (for both public and Members) until 11 October 2001. This allows for an extension to collect comments, and allows the Patent Policy Working Group to prepare for their next face-to-face meeting, which begins on 15 October 2001.

Please note: due to the large number of comments received in the past two days, the Team and Patent Policy Working Group will require extra time to identify substantial comments and provide responses in kind. Please send your comments on the proposed policy to www-patentpolicy-comment@w3.org (archive).

As the proposed policy includes proposals such as:

W3C would like to know if your opposition to or support for the policy refers to all three of these proposals, or just some of them.

In the remainder of this message, W3C answers additional questions and assumptions raised by recent comments:

  1. What are the goals of the proposed policy?
  2. Does the proposed patent policy represent a change in W3C licensing policy?
  3. Is this the end of of royalty-free licenses for W3C Recommendations?
  4. Is RAND licensing common for bodies like W3C?
  5. Why wasn't this proposed policy announced more loudly?
  6. Does W3C endorse software patents?
  7. What happens next?

1. What are the goals of the proposed policy?

The W3C and the Patent Policy Working Group represent a diverse range of opinions. This includes those who feel that all W3C Recommendations should be Royalty-Free, and those who believe that paying Reasonable and Non-Discriminatory (RAND) fees to implement W3C Recommendations is sensible and even productive policy.

W3C recognizes that a Royalty-Free environment was essential to the growth of the Web, and the contributions of the open source developer community have been critical to its success. W3C also recognizes that software patents exist (and patent issues have become more prevalent with the growth of the Web), and ignoring them will do more harm than good. W3C is working hard to reach consensus in an area where there is an obvious tension, and to strike a balance among diverse interests.

Some of the goals of the proposed policy are to ensure that:

  1. The Web community is not surprised by "submarine" patents whereby unsuspecting participants are forced to pay license fees after their participation in the creation of a Recommendation that they thought was unencumbered.
  2. Future work is not hindered because of Fear, Uncertainty, and Doubt. The proposed policy is designed to promote better decisions through disclosure of information. The expectation is that information will allow a Working Group to proceed as is, to work around a perceived patent obstacle, or to abandon work entirely if perceived to be too encumbered by patents.

2. Does the proposed patent policy represent a change in W3C licensing policy?

In the past two days, many people have expressed concern that the proposed patent policy changes W3C's current licensing policy for Recommendations. W3C has never had a stated licensing policy for implementation of its Recommendations, so the proposed policy is entirely new in this regard.

Many people have assumed that W3C grants a Royalty-Free license to implementers of all W3C Recommendations, but this is not the case. Indeed, W3C has already found itself in a situation where implementers of a W3C Working Draft (the P3P specification) faced possible patent infringement litigation by a patent holder who had participated in the Working Group developing P3P. The immediate result was to bring P3P development to a halt. W3C then made a call to the developer community for prior art, and conducted a patent analysis. W3C's analysis concluded that there was no infringement. In response to several similar situations in which fear, uncertainty, and doubt surrounding patents confused or derailed W3C work, W3C felt that it would be irresponsible to act as if software patents didn't exist (but see point 6 below).

What does the proposed policy change? It establishes a process that requires people to disclose to a Working Group that a specification in development may intersect with patented technology. The proposed policy does not eliminate the risk that a patent holder somewhere may claim that an implementer has infringed upon a patent. It does, however, increase the chance that an informed Working Group will be aware of this risk and may choose to accept it or work around it.

3. Is this the end of of Royalty-Free licenses for W3C Recommendations?

No. The policy defines two licensing modes for a Working Group: Royalty-Free and RAND. Will Working Groups ever operate in Royalty-Free mode? The policy states that "[p]reservation of interoperability and global consensus on core Web infrastructure is of critical importance. So it is especially important that the Recommendations covering lower-layer infrastructure be implementable on a Royalty-Free basis." When a Working Group wishes to produce a specification that is not Royalty-Free, the proposed policy requires the charter to provide rationale for the choice of RAND.

The policy improves on the current W3C process by making licensing assumptions explicit and enforcible. The reciprocity provisions of the proposed Royalty-Free license structure would help ensure that all implementers benefit from Royalty-Free licenses to patent claims by any other implementer.

4. Is RAND licensing common for bodies like W3C?

Yes. A RAND license is common among standards organizations.

For instance, for the IETF's Internet Standards Process (Revision 3), RFC 2026 section 10.3.2 says:

(C) Where the IESG knows of rights, or claimed rights under (A), the IETF Executive Director shall attempt to obtain from the claimant of such rights, a written assurance that upon approval by the IESG of the relevant Internet standards track specification(s), any party will be able to obtain the right to implement, use and distribute the technology or works when implementing, using or distributing technology based upon the specific specification(s) under openly specified, reasonable, non-discriminatory terms. The Working Group proposing the use of the technology with respect to which the proprietary rights are claimed may assist the IETF Executive Director in this effort.

For information about ETSI's IPR policy, refer to to section 6 of Annex 6 of the ETSI directive. ANSI patent policy guidelines also involve RAND terms.

5. Why wasn't this proposed policy announced more loudly?

Some reviewers questioned whether this document had been announced, and that a lack of announcement was deliberate. Please note that:

In addition, at the same time the policy was published, W3C published supplementary materials:

These additional materials were written with both the developer and general public in mind. We hope that they will be useful during the extended comment period.

W3C acknowledges the frustration expressed by some developers at not being able to comment on an earlier draft of the policy. Due to the complexity of the issues, the process of developing a draft that the Patent Policy Working Group felt reflected even a rough consensus of its own views took longer than expected. The Patent Policy Working Group is prepared to receive and respond to public comments before the policy is finalized.

6. Does W3C endorse software patents?

W3C takes no position on the public policy questions surrounding software patents The draft policy does attempt to answer this question: In a world where patents exist and may be used to constrain conformance to standards, how should W3C best proceed in order to accomplish its mission? Even if a patent holder claims that a patent is relevant to a W3C Recommendation and that party offers a license, this does not mean that W3C (or anyone else) shares the belief that the claim is valid, or that an implementer has infringed upon it.

The W3C Process Document governs what happens next. In particular, the following will happen:

Janet Daly and Daniel J. Weitzner. Last modified: $Date: 2001/10/02 01:59:34 $