On 15 September, 2020, W3C adopted the 15 September 2020 Patent Policy ("W3C Patent Policy"), updating the previous 5 February 2004 (updated 1 August 2017) Patent Policy. This document lists some frequently asked questions about the W3C Patent Policy and provides answers to those questions.
This document is purely informative, for the assistance and information of those interested in the W3C Patent Policy. If this document is in any way inconsistent with the W3C Patent Policy, the Patent Policy is authoritative.
Frequently Asked Questions about the previous 5 February 2004 (updated 1 August 2017) Patent Policy remain available for reference.
The W3C Patents and Standards Interest Group reviews proposed FAQ entries. Please send questions or comments on the W3C Patent Policy or this document to the Patent and Standards Interest Group public mailing list www-patentpolicy-comment@w3.org (archive).
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:
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.
Section 3.1 of the 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.
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:
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.
This question is addressed by the Policies for Contribution of Test Cases to W3C.
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:
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.
Yes. However, see question #non-participants for related issues about contributions from non-participants, including meeting guests.
See also section 3.2 of the Process Document, which discusses general meeting requirements.
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:
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:
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.
Procedures for Launching a Patent Advisory Group describes the operational considerations and steps for forming a PAG when an exception occurs under the W3C Patent Policy.
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)
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).
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Last modified: $Date: 2024/06/17 09:11:03 $ by $Author: vivien $.