During the life of a Working Group (until it closes) under the W3C Patent
Policy, certain events on the Recommendation Track create exclusion
opportunities for Working Group participants; those events are the
publication of First Public Working Drafts and Patent Review Drafts.
Each exclusion opportunity has associated with it both a duration and subject matter in the specification. For the duration of a given exclusion opportunity, a Working Group participant can exclude one or more Essential Claims that is limited to the subject matter in the specification that was not present or apparent in a prior exclusion opportunity. After that opportunity closes, the participant may no longer exclude any Essential Claim with respect to that subject matter in the specification.
At the next exclusion opportunity, a participant may exclude Essential Claims that are limited in scope to any subject matter in the specification available when the opportunity begins that was not present or apparent in the specification for a prior exclusion opportunity, and only prior to the expiration of that exclusion opportunity.
Any participant who joins a Working Group after the close of an exclusion opportunity must exclude any Essential Claims within 24 hours of joining the group. For such a participant, exclusion is always with respect to the subject matter of the document associated with the latest exclusion opportunity that closed prior to such participant joining the Working Group.
Participants also have an exclusion opportunity when they resign, on material not previously subject to exclusion that is present or apparent in the latest Working Draft published prior to their resignation. For this purpose, “Working Draft” includes Candidate Recommendation Drafts and any other publications designated by the W3C Process as a Working Draft for the purposes of the Patent Policy. Participants are not committed to licensing any additional Essential Claims resulting from changes to a Specification after their resignation.
Consider what this means for a sample Working Group under the W3C Patent Policy:
- The Foobar Working Group (“Foobar WG”) publishes a FOO 1.0 First Public Working Draft that is intended to become a Recommendation.
- The Director issues a Call for Exclusion to the Foobar WG participants. The exclusion opportunity lasts 150 days.
- At approximately 90 days, the Director sends out a reminder of the exclusion opportunity with a pointer to the "FOO 1.0 Reference Draft," i.e., the latest version of the FOO 1.0 Working Draft available at that time. Exclusions are limited in scope to the subject matter in the FOO 1.0 Reference Draft.
- The Foobar WG publishes a new Working Draft of FOO 1.0. This does not create a new exclusion opportunity or alter any existing exclusion opportunity.
- A new participant joins the Foobar WG after the end of the first exclusion opportunity. That new participant must exclude any Essential Claims within 24 hours of joining the Foobar WG, and exclusions are limited in scope to the subject matter in the FOO 1.0 Reference Draft.
- An existing participant resigns the Foobar WG. That participant has an extraordinary 60-day exclusion opportunity against the most recently-published Working Draft, for any Essential Claims not present or apparent in the FOO 1.0 Reference Draft.
- The Foobar WG announces the FOO 1.0 Candidate Recommendation Snapshot (Patent Review Draft), which begins the second exclusion opportunity. The exclusion opportunity lasts 60 days. Any exclusions are limited in scope to any subject matter in the FOO 1.0 Patent Review Draft that was not present or apparent in the FOO 1.0 Reference Draft.
- A new participant joins the Foobar WG during the second exclusion opportunity. The new participant must exclude any Essential Claims in the FOO 1.0 Reference Draft within 24 hours of joining the Foobar WG, and the new participant’s exclusions will be limited in scope to the subject matter in the FOO 1.0 Reference Draft. As the exclusion opportunity for the FOO 1.0 Patent Review Draft is still open, the new participant will have until the close of the exclusion opportunity for the FOO 1.0 Patent Review Draft to exclude Essential Claims related to that specification; any exclusions are limited in scope to any subject matter in the FOO 1.0 Patent Review Draft that was not present or apparent in the FOO 1.0 Reference Draft.
- A new participant joins the Foobar WG after the end of the second exclusion opportunity. The new participant must exclude any Essential Claims within 24 hours after joining the Foobar WG, and the scope of the exclusion opportunity is with respect to the subject matter in the FOO 1.0 Patent Review Draft.
- The Foobar WG makes substantive changes to the FOO 1.0 Patent Review Draft, thereby creating FOO 1.1 Patent Review Draft and another exclusion opportunity. The third exclusion opportunity begins with the announcement of the FOO 1.1 Patent Review Draft and lasts 60 days. Exclusions are limited in scope to the subject matter in the FOO 1.1 Patent Review Draft that was not present or apparent in the FOO 1.0 Patent Review Draft.
- A new participant joins the Foobar WG after the close of the third exclusion opportunity. The new participant must exclude any Essential Claims within 24 hours of joining the group, and the scope of the exclusion opportunity is limited to the subject matter in the FOO 1.1 Patent Review Draft.
And so on.
Participants in W3C Interest Groups have no licensing obligations with respect to the deliverables of those groups. The charters of Interest Groups may, however, incorporate by reference disclosure rules or definitions from the Patent Policy.
Participants in W3C Community and Business Groups have patent licensing and other obligations as more fully described in the W3C Community Contributor License Agreement (CLA). A party must sign the CLA prior to participating in Community and Business Groups. A summary of the CLA and patent licensing (and other) obligations can be found here: contributor agreements.
A W3C Working Group frequently finds itself in the position of receiving
reviews and input from other parties who are not participants in the Working
Group, including:
- Another W3C Working Group;
- A meeting guest, including an observer during the Technical Plenary
Week;
- The general public on a mailing list.
All Participants in a given Working Group have made a commitment to
the W3C Patent Policy (in particular, the provisions regarding
licensing obligations), but only for the Specifications of that
particular Working Group. In general, other parties have not made the
same commitment for those same deliverables, although they MAY make
this commitment if they wish. Similarly, W3C may request that they
make such a commitment (W3C Group(s) Team Contact(s) manage(S) these
contributions). This means that the Working Group should consider very
carefully any contribution from a non-Participant before including it
in a document intended to become a W3C Specifications.
To help manage expectations of meeting guests, attendees of joint Working
Group meetings, and mailing list subscribers, it is useful to remind them
when appropriate of the goals of the W3C Patent Policy.
When a contribution is being considered for actual inclusion in a document
intended to become a Specifications, the Chair should ask the Contributor to
disclose any essential claims, and if there are any, the terms under which
those claims would be licensed. Lack of a response to this request is a red
flag.
In cases where disclosure reveals possible incompatible licensing, the
Working Group should either steer away from the Contribution, or attempt to
secure W3C
Royalty-Free licensing terms. W3C prefers to avoid PAGs where
possible.
See question #testcases for information about contributed
test cases.
Participants in a Working Group under the W3C Patent Policy have licensing
obligations for a Working Draft published by the group unless any of the
following is true:
- W3C terminates the work before the Working Draft becomes a
Patent Review Draft.
In this case, Participants are released from their licensing obligations.
When work terminates prior to it being published as a Patent Review Draft, W3C should publish this
work as a Discontinued Draft.
- the Working Group charter states that the deliverable is not intended
to become a W3C Patent Review Draft (as is done for requirements documents,
for example). If for any reason W3C decides that the work should indeed
advance on the Recommendation Track, licensing obligations will take effect and
there will be an exclusion
opportunity for Working Group Participants; the currently available
draft will be treated as a First Public Working Draft under the W3C
Patent Policy.
- the Working Group charter or Working Draft itself states that the
deliverable is informative only (e.g., a primer or tutorial); see also question #informative.
No. Section
3.1 of the Patent Policy states (emphasis added):
As a condition of participating in a Working Group, each participant
(W3C Members, W3C Team members, invited experts, and members of the public)
shall agree to make Specification Licensing Commitments under W3C RF licensing requirements for any
Essential Claims related to the work of that particular Working
Group that are not excluded pursuant to section 4.
Recall, however, that implementers (whether or not they participated in
the Working Group that produced the Patent Review Draft) may incur licensing
obligations through reciprocal licensing terms as permitted by section
5 of the Patent Policy.
Please note that Participants in one W3C group may have disclosure
obligations related to work in other W3C groups; see section
6 of the Patent Policy as well as question #efforts and
question #duplicate.
According to the W3C Patent Policy, informative material is not essential
to implementing a Specification and is therefore not subject to the
licensing requirements of the policy. This is the case whether that material
is a single section of a document or an entire document (such as a primer or
guide) that is part of a multi-document Specification. Section
8.2 of the Patent Policy states:
The following are expressly excluded from and shall not be deemed to
constitute Essential Claims:...
2. ...claims which would be infringed only by ... portions of an
implementation that are not specified in the normative portions of the Patent Review Draft or
Recommendation.
Section
8.3 goes on to say that, "For purposes of this definition, the normative
portions of the Specification shall be deemed to include only architectural
and interoperability requirements."
W3C's QA
Specification Guidelines provide guidance about identifying
the normative and informative portions of a document.
Whether a group is or is not under the W3C Patent Policy has no impact on
who may or may not subscribe to the group's mailing lists. For example,
anyone with Member access may read any Member-visible mailing list archive.
See question #non-participants for related issues about
contributions from non-participants, including individuals who provide
feedback on a group mailing list.
When a W3C Fellow, who is an employee of a W3C Member, participates in a
Working Group, the W3C Member has the obligations for Member Participants
described in the Patent Policy. W3C Fellows must be nominated by their
Advisory Committee Representative in order to be able to participate in a
Working Group.
No. Section
5 of the Patent Policy lists the licensing terms required by this policy.
Organizations participating in a W3C Working Group under the Patent Policy
may not make individual modifications to or departures from the licensing
requirements spelled out in the Policy. An important efficiency gained with
the Patent Policy is avoidance numerous one-off licensing statements. If each
participant proposed its own policy then other Working Group Participants and
implementers would have to invest extra time and legal expertise to review
individually-crafted licensing language. Also, the W3C Team would be put in
the position of making possible subjective evaluations of individual
licensing statements. In order to avoid this complex legal analysis, the
Policy requires that each entity joining a W3C Working Group makes a choice
between two straightforward options: 'we agree' or 'we don't agree' to the
terms of the Patent Policy. Organizations offering licenses meeting the W3C
Royalty-Free requirements may point to the specific contact information and
entity-specific license terms, as provided in Section 5 of the Policy.
Per the [proposed] TAG charter [revision of Nov 2004], individuals in the
TAG participate as Invited Experts with respect to the Patent Policy, even
when they are Member employees.
Licensing obligations for TAG participants only extend to those claims
over which the individual exercises control (per section
3.4 of the Patent Policy). The individual's employer has
no licensing obligation by virtue of the individual's
participation as an Invited Expert in the group in question.
Disclosure obligations for TAG participants are those of any other W3C
participant (as described in section
6.1 of the policy) except with respect to the definition of third-party
patents. Per section
6.7 states that:
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 or applicant has asserted that its
patent contains Essential Claims, unless such disclosure would breach a
pre-existing non-disclosure obligation.
For TAG participants who are employees of a Member organization, patents
controlled by the Member organization are not considered
third-party patents. Thus, the scope of the individual's disclosure
obligation includes them.
No. Section
6.1 of the W3C Patent Policy states:
Disclosure is required when [...] an individual in a Member organization
receives a disclosure request as described in section 6.3; and that
individual has actual knowledge of a patent which the individual believes
contains Essential Claim(s) with respect to the Specification for which
disclosure is requested.
The appearance of such a disclosure request in a document status section
section does not obligate any individual to read or become
informed of the contents of the document. However, if a person who receives
such a request is aware of claims on a technology and is, through whatever
means (e.g., as a result of reading the document or having a conversation),
sufficiently aware of the contents of the W3C document to believe that a
claim is essential, then that person has the obligation to disclose that
information. Recall also that per section
6.7, no patent search is required.
Duplicate disclosures are not required for a given patent
claim/specification pair. Per section
6.2 of the Patent Policy (emphasis added):
The disclosure obligation as to a particular claim is satisfied
if the holder of the claim has made a commitment to license that claim
under W3C RF licensing requirements and the claim is no longer subject to
exclusion under section 4.
Parties make the W3C RF licensing commitment with respect to a patent
claim/Specification pair. Once a disclosure has been made with respect to a
given claim/Specification pair, no further disclosures are required, by
anyone, for that claim/Specification pair. Also per section 6.7, once an RF
licensing commitment has been made to a given claim/Specification pair, no
disclosures are required, by anyone, for that claim/Specification pair. If
the same patent claim bears on another Specification, disclosure obligations
are not thereby discharged; each claim/Specification pair is treated
independently.
That depends on the nature of their relation (see section
2.1.2 of the Process Document for the various relations possible). The
Patent Policy does not mention Related Members explicitly but does state in
section
3.1:
This [licensing] requirement includes Essential Claims that the
participant owns and any that the participant has the right to license
without obligation of payment or other consideration to an unrelated third
party.
Therefore, if Member A (related to Member B) joins a Working Group, then
the licensing commitment would extend to patents held by Member B to the
extent that the relationship between the related members is not a barrier to
such licensing. Of course, regardless of the licensing relationship between
the related Members, Member A continues to have a disclosure the obligations
described in section
6 of the Patent Policy.
Yes. W3C Members must disclose Related Member status per section
2.1.2 of the Process Document. In cases where participation in a group by
one of a set of Related Members may create the appearance of working around
licensing obligations, the Director may decline to allow such
participation:
In exceptional circumstances (e.g., situations that might jeopardize the
progress of a group or create a conflict of interest), the Director MAY
decline to allow an individual designated by an Advisory Committee
representative to participate in a group. (Section
3.1.2 of the Process Document.)
In general, no. Prior to the adoption of the W3C Patent Policy, in some
cases an individual employed by a W3C Member might be invited to participate
in a Working Group as an Invited Expert rather than as a formal Member
representative. W3C no longer follows this practice for two reasons:
- Precisely because it would be unfair to other W3C Members and be
contrary to the goals of the Patent Policy to limit licensing obligations
of the patent policy.
- The W3C Process Document has been revised so that this practice is no
longer necessary. In the past, Chairs of some W3C groups invited Member
employees to participate in order to work around chartered restrictions
in the number of participants from one Member organization. These
chartered restrictions had been adopted in order to ensure balanced
representation of views in formal votes (when such votes were required).
Changes to the Process Document such as limiting the number of formal
votes per organization have made it unnecessary to "work around the
charter", and thus the practice described has become unnecessary.
Yes, in most cases. For instance, suppose we are talking about an
exclusion opportunity that begins with the publication of a Patent Review Draft. Although the exclusion opportunity lasts 60 days, the Working Group
may publish additional documents, including Patent Review Drafts during
those 60 days. Of course, other Process Document requirements are in force as
well
The W3C Team will not, however, start a Proposed
Recommendation review period until all current exclusion opportunities for a
given specification have ended.
In some cases, two exclusion opportunities for the same specification may
be open in parallel. This is possible since exclusion opportunities are
mutually exclusive with respect to reference material.
No.
The
previous answer to this question proved unworkable in practice.
Yes. Section
3.1 of the W3C Patent Policy states:
As a condition of participating in a Working Group,
each participant (W3C Members,
W3C Team members,
invited experts,
and members of the public)
shall agree to make Specification Licensing Commitments under W3C RF licensing requirements for any Essential Claims related to the work of that particular Working Group that are not excluded pursuant to section 4.
This requirement includes Essential Claims that the participant owns
and any that the participant has the right to license
without obligation of payment
or other consideration to an unrelated third party.
With the exception of the provisions of section 4 below,
W3C RF licensing obligations made concerning the work of the particular Working Group and described in this policy are binding on participants for the life of the patents in question
and encumber the patents containing Essential Claims,
regardless of changes in participation status or W3C Membership.
Note that if this were not the case, one could easily subvert the
intention of the policy by, for example, joining a Working Group and filing
for a patent the following day.
In response to the Call for Participation in the rechartered
group, current Participants are required to re-join the group unless
the renewed charter was merely extended, or the only changes are
non-substantive (e.g., clarifications, editorial repairs, minor error
corrections, change of Team Contact, etc.). Re-joining the group, when
required, implies a renewed commitment to the terms of the charter and the
Patent Policy.
When re-joining is required, the Call for Participation begins a grace
period (see question #start) during which time current
Participants may attend meetings (teleconferences and face-to-face meetings)
even if they have not yet re-joined the group. After the grace period,
ongoing participation (including meeting attendance and voting) is only
permitted for those who have re-joined the group.
When re-joining is required, Advisory Committee Representatives of current
Participants are not required to "re-nominate" their representatives to the
group.
In general, no. W3C experience shows that this sort of "differential"
specification can be difficult to read and implement. W3C therefore prefers
to publish self-contained specifications.
For any specification, a Working Group makes decisions about what to
include and what to reference based on many factors, such as the expected
length of the document and the stability of referenced materials. A typical
specification does include some references to external material, and this has
W3C Patent Policy implications. Per section
8.2 of the W3C Patent Policy, technology incorporated by reference is
"expressly excluded from and shall not be deemed to constitute Essential
Claims." The commitments of the Participants who authored the specification
refer to the text in the specification and stop short of the external
references. Creating a self-contained specification therefore helps to reduce
confusion about licensing commitments as part of improving overall document
usability.
Yes, in most cases. Section
7.1 of the Patent Policy states:
During the time that the PAG is operating, the Working Group may
continue its technical work within the bounds of its charter.
The W3C Director will not generally start a Proposed Recommendation review
period until after any PAG discussing the document has issued its report.
Member B has the standard obligations of a Member participating in a
Working Group under the Patent Policy. W3C also requires in practice that
organization A — whether or not A is a W3C Member — offer W3C
Royalty Free licensing commitments for that Working Group.
Yes. W3C Patent Review Drafts and Recommendations may include normative references to standards or
technologies developed outside of W3C. However, the Working Group should keep
in mind the importance of royalty-free implementations of Web standards. In
the event it becomes clear that the licensing status of those
externally-developed technologies could become a barrier to implementation of
the technology according to the W3C Royalty-Free (RF) Licensing Requirements,
W3C may choose not to publish the document or may launch a PAG.
The W3C Patent Policy does not explicitly address specifications that are
jointly authored by several Working Groups. W3C does, in some cases, charter
more than one group to work on the same specification, and this is not
forbidden by the Patent Policy. By extension of the policy, all Participants
in any Working Group chartered to develop a specification have the same
patent policy obligations with respect to that specification.
See question #non-participants for the situation where
coordinating groups are not all chartered to work on a given deliverable.
In order to exclude a patent claim (see Section 4),
excluders should take reasonable steps to exclude only those patent claims
that they reasonably believe are essential to the Patent Review Draft or could become essential to the
Recommendation. However, per Section 6.7,
the excluding organization is not required to conduct a patent search, nor
does the exclusion constitute a final determination that the patent claim(s)
is essential to the Patent Review Draft or Recommendation. Exclusions made early in
the development of a Patent Review Draft or Recommendation may be premised on the likelihood that a
patent will end up being essential to the Patent Review Draft or Recommendation, but that the
excluding organization cannot make firm assertions in this regard.
Yes. An organization may withdraw an exclusion at any time, even after
publication of the Patent Review Draft or Recommendation concerned.
If an organization has made an exclusion for a Patent Review Draft or Recommendation and then
modified its internal patent policy strategy, it is useful for the
organization to review the exclusion and consider withdrawing it. This tends
to give the community more confidence about being able to implement the
standard on terms consistent with the W3C Royalty Free License.
W3C has defined a Process for revising
Recommendations to fix broken links and invalid markup, make
editorial clarifications, make substantive corrections, and introduce
new features. The process involves community review
of a "proposed
amendments" that is
subsequently published as a new
edition of the same Recommendation. Licensing commitments made to the
original Recommendation will apply to new editions that result from
this process.
In the unlikely event that new features improperly creep in without
proper review, there are procedures for challenging the document's
status. New features would not, in any case, be covered
by the original licensing obligation.
The patent holder can cooperate by facilitating the creation of a
specification which conforms to W3C's patent policy, helping the
Working Group (and the
Patent Advisory Group if one exists)
understand how to proceed. To do so, the excluder can:
- Indicate with precision which features in a specification may be
covered by the claim, and/or
- Discuss with the Working Group or the PAG possible changes to
the specification which might avoid the claim.
While this entry does not change the requirements stated in this
Patent Policy itself, this kind of cooperation could result in the
creation of an RF specification in an area that is important to the
excluder. The patent holder may also derive positive publicity and
good will from contributing to, rather than preventing, the
development of open Web standards.
The Patent Policy commitment of Member A is given for the lifetime of
the patent as described in section 3 and section 5 of the Patent Policy. Consequently, Member B
inherits Member A's Royalty-Free licensing commitments.
Member B is not considered a Working Group Participant by virtue of
its acquisition of Member A. Thus, unless Member B joins the Working
Group (or is already participating), it does not have any additional
licensing obligations as of the termination of Member A's contract
with W3C. If Member B joins the Working Group, other sections of the
Patent Policy govern new licensing commitments and exclusion
opportunities.
Under the current (September 15, 2020) version of the Patent Policy (unlike prior versions of the Patent Policy), Working Group Participants may incur licensing obligations with respect to versions of the specification contained in pre-Recommendation published documents known as Patent Review Drafts even if such specification is never ultimately published as a Recommendation. A Patent Review Draft refers to a version of a W3C Specification that is defined as such by the W3C Process and is published for patent review and exclusion.
150 days. The Patent Policy specifies 150 days as the duration of the exclusion opportunity at First Public Working Draft, and 60 days at Candidate Recommendation. If the two coincide, the larger (more conservative) duration of the two is respected. See
question #early-exclusion-end for information about ending an exclusion opportunity early.
The original English version of the Patent Review Draft or Recommendation is authoritative, and the patent commitments apply only to implementations that conform to that original version. The role of a translation is to facilitate the comprehension of the authoritative Patent Review Draft or Recommendation, not to replace or modify it.
No. Under the W3C Patent Policy, Members have licensing obligations only with respect to claims that are Essential to a Specification generated by a particular Working Group in which the Member is a participant. (§3.1) In addition, patents or applications that are disclosed may or may not ultimately prove to contain claims that are actually Essential to the W3C Patent Review Draft or Recommendation (see Process Document §7.1.2), and the licensing obligation exists only as to claims that are Essential to a Patent Review Draft or Recommendation (see §3.3, §8.1)
39. If a Member agrees prospectively to license all claims that may be Essential to a Patent Review Drafts nd Recomendations of a particular W3C Specification, does the Member still have any obligation under §6 to make disclosures, as described in §6.1 and §§6.4-6, with respect to that Specification and its drafts?
No. In this circumstance the Member is exempt from the disclosure obligation by the terms of §6.2.
No. Section §6.1 states:
"Disclosure is required when BOTH of the following are true:
- an individual in a Member organization receives a disclosure request as described in section 6.3; and
- that individual has actual knowledge of a patent which the individual believes contains Essential Claim(s) with respect to the specification for which disclosure is requested."
See also exemptions (§6.2).
Last modified: $Date: 2021/11/08 20:49:57 $ by $Author: wseltzer $.
Frequently Asked
Questions (FAQ) about the W3C Patent Policy (2020)