Patent Policy Working Group Face-to-Face Meeting Summary

15-17 October 2001
Cupertino, CA USA

Attendees

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 October)
• 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 the table.

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:

1. General reactions to Member and Public Comments
2. 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?
3. What would a RF-only Recommendation track look like, without making any assumptions about whether a separate RAND track also exists?
4. Discussion with W3C Director Tim Berners-Lee about general patent policy issues
5. How will this WG respond to all of the Member and Public Comments?
6. Conclusions: How will W3C as a whole decide on the final patent policy?

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 observations:

• 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 mode.
• 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 standard.
• 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 following arguments:

• 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 points:

• 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 action.
• If W3C adopts an RF-only model, then many important Web technology standards may end up being developed at other standards bodies or industry consortia.
• 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:

1. 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 Recommendation?
   • 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 specification?
   • 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?
2. Disclosure obligations
   • Should all W3C Members be obliged to disclose patents of which they are aware?
   • If a Member makes a commitment to license patents essential to a particular specification on RF terms, must that Member still disclose patents held?
3. Decision-making: What happens when W3C becomes aware of essential patent claims that are not available on an RF basis?
   1. Which of these options should a Patent Advisory Group be able to recommend:
      • Ignore claim
      • Design around claim
      • Get more information, including legal opinion on validity and/or infringement
      • Stop the WG
   2. Does the PAG require W3C staffing beyond what is available today?
4. Warranty: What promise, if any, does W3C make regarding possible infringement liability for a Recommendation developed as 'Royalty-Free'?

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 alternatives.

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:

1. 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.
2. 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 developers.
   • 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.
3. 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.
4. 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 for W3C:

1. 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.
2. 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.