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Patent Policy Working Group Face-to-Face Meeting Summary

15-17 October 2001
Cupertino, CA USA


The following members of the Patent Policy Working Group attended the meeting:

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:

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:

Those in favor of retaining the mixed RAND and RF model made the following points:

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:
  2. Disclosure obligations
  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:
  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.

Daniel J. Weitzner, Chair, Patent Policy Working Group; Technology and Society Domain Leader  <djweitzner@w3.org>
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