It came to our attention that Peter Cranstone has been discussing with participants in the Tracking Protection Working Group US patent 8,156,206, claim #22, in relation to the Tracking Preference Expression specification of 2012. In the meantime, the W3C Last Call Working Draft 24 April 2014 has changed considerably and it is obvious that current implementations of the Tracking Preference Expression Specification are outside the scope of US patent 8,156,206, claim #22,. Consequently, this Patent Advisory Group recommends that the Tracking Preference Expression Specification shall continue as is.
The W3C Tracking Protection Working Group is chartered to define mechanisms for expressing user preferences around Web tracking. The Patent holder, especially Peter Cranstone was providing feedback to the Working Group from the outside with unclear status. Once M. Cranstone addressed Participants of the Working Group concerning his US patent 8,156,206, claim #22,, W3C Team asked him to refrain from further participation or feedback and triggered this PAG.
The goal of the W3C Patent Policy is to assure that Recommendations produced under this policy can be implemented on a Royalty-Free (RF) basis. Patent Advisory Groups are formed when patent claims are asserted against or expressly excluded from royalty-free implementations of W3C Recommendations. That happened here when M. Cranstone asserted that US patent 8,156,206, claim #22, would apply to the Tracking Preference Expression specification of 2012
This report concludes the activities of the Tracking Preference Expression Patent Advisory Group.
The '206 Patent claims do not read on the Tracking Preference Expression Specification:
The '206 Patent describes in its claims 1-22 a system where an internet enabled device can set privacy preferences and send codes for those preferences over http to a web server. The web server then acts according to the predefined privacy setting who's code was transmitted. The patent talks about a mobile device, but the web does not distinguish between a browser on a mobile device and a browser on a desktop computer. This client side device or browser can thus instruct the server to follow certain predefined algorithms and rules.
First of all, it has to be noted that already in 2004 the GeopPriv suite of IETF Specifications had sent privacy tokens to servers and that the geopriv servers had to adapt to the instructions in the geopriv request. This constitutes prior art and seriously limits the possible application of the '206 patent.
But ultimately, the Tracking Preference Expression Specification does not send an instruction to the server, but a mere request. And the server decides freely whether to honor that request or not and informs the user accordingly. The Tracking Preference Expression Specification contained the idea that the Web server had to comply to the signal sent by the user in earlier version. But this was given up in favor of a protocol that now sends a request and must look into a response header in order to find out whether the request for tracking protection has been honored. This means that US patent 8,156,206, claim #22, and the Tracking Preference Expression (DNT) Last Call Working Draft of 24 April 2014 describe fundamentally different things.
This Patent Advisory Group is thus confident to recommend to the Tracking Protection Working Group to continue the work on the Tracking Preference Expression (DNT) without changes.
Note that the US patent 8,156,206 was sold in 2013. The US Patent and Trademark Office assignment database shows that, as of October 30, 2013, US Patent 8156206 (along with 4 other properties) was assigned to RPX Corporation.
RPX describes itself as:
RPX is the world’s leading provider of patent risk services that limit the extraordinary and wasteful costs associated with non-practicing entities (NPEs or “patent trolls”). NPE patent-infringement lawsuits cost nearly $13 billion every year in legal expenses and settlements. For the thousands of companies targeted by patent trolls, RPX has the solution. Our core service is Defensive Patent Acquisition. On behalf of our clients, we acquire patents in the open market and out of active litigations. By keeping these potentially problematic patents out of NPE hands, RPX ensures that they cannot be used offensively against our clients. The RPX network has grown to approximately 200 members in just six years and continues to expand. ...
Although portions of this PAG analysis were drafted by attorneys following review of the facts, none of the authors is your attorney. No part of this report is intended as legal advice either to W3C or to its members. It is intended merely as a summary of what the PAG has learned to date. Rely on this report entirely at your own risk. However, nothing should prevent even an attorney from expressing his or her personal opinions, and so this analysis includes the personal opinions of the authors.
With respect to W3C, the publication of the Tracking Preference Expression Specifications would not, by itself, be patent infringement of the US patent 8,156,206 or any other patents. Implementers and distributors of software products, though, are encouraged to read the analysis above, consult with their own attorneys, and form their own conclusions.
THESE RECOMMENDATIONS OF THE TRACKING PREFERENCE EXPRESSION PATENT ADVISORY GROUP ARE NOT LEGAL ADVICE. NEITHER W3C NOR ANY OF THE PARTICIPANTS OF THIS PATENT ADVISORY GROUP OR THEIR RESPECTIVE EMPLOYERS TAKES ANY RESPONSIBILITY FOR THE ACCURACY, LEGAL CORRECTNESS OR OTHER FITNESS FOR ANY PURPOSE OF THE INFORMATION PROVIDED IN THIS REPORT. ESPECIALLY, NEITHER W3C NOR ANY OF THE PARTICIPANTS OF THIS PATENT ADVISORY GROUP OR ANY OF THEIR RESPECTIVE EMPLOYERS MAKE ANY REPRESENTATION THAT FOLLOWING THE RECOMMENDATIONS HERE WILL AVOID AN INFRINGEMENT OF THE US PATENT NR. 8,156,206 OR ANY OTHER PATENTS AND/OR PATENT APPLICATIONS MENTIONED IN THE REPORT.Contact: Rigo Wenning, Tracking Preference Expression PAG Chair; last updated $Id: pagreport.html,v 1.4 2015/05/21 00:24:04 wseltzer Exp $