This is an overview of the Process 2020 update and proposal for a corresponding update to the Patent Policy. It is aimed particularly for a legal audience.

This project has been completed and the new Patent Policy has taken effect as of 15 September 2020.

Overview

The W3C Advisory Board and Process Community Group are proposing a series of improvements to the W3C Process, and recommend that the Patent Policy be updated to match. This page provides an overview from a legal perspective.

If you want a more detailed overview for working groups/editors/chairs and other people producing work within the Process, see Process2020.

Process Proposals

Overview

Process 2020 plans to introduce two major features:

Living Standards at Candidate Recommendation, through improved publication workflow and periodic Snapshots for review and patent commitment.
Amendment process for Recommendations (included for reference, no PP changes believed to be necessary)

Living Standards at Candidate Recommendation

To secure patent commitments for implementation drafts, the Process 2020 proposal plans to:

Enable groups to publish “Candidate Recommendation Snapshots,” which trigger a patent exclusion period, and secure patent licenses upon expiration of the exclusion period.
Other regular “Candidate Recommendation Updates” do not trigger an exclusion period (similar to existing “Working Draft” publication).

To satisfy the legal community's review requirements, the “Candidate Recommendation Snapshot” publications are recommended [RFC211] to occur no more frequently than once every 6 months, and not less frequently than 24 months after any substantive change to the specification.

Amendment Process for Recommendations

The proposed amendment process for Recommendations consists of three phases:

Adding informative Proposed Change annotations to the Recommendation.
Issuing a Call for Review on a subset of the Proposed Changes, which triggers an exclusion period per the existing Patent Policy.
If no problems are found and approval is granted, republishing the Recommendation with the Proposed Changes applied.

The Proposed Change annotations are explicitly non-normative (and therefore not subject to the Patent Policy protections).

The Call for Review can be made to work under the current Patent Policy by defining the combination of the Recommendation and the Proposed Changes as a “Last Call Working Draft” for the purposes of the Patent Policy, and therefore it is expected that it would not require any changes to the Patent Policy.

There's an open discussion of whether this amendment process should be allowed to add new features to the Recommendation, rather than just corrigenda. Also, of whether, if new features are allowed, this should be described and/or limited in various cases in the charter. See discussion.

Patent Policy Process 2020 Goals

Summary of Goals

To support the "Living Standards at Candidate Recommendation" workmode, whereby groups iterate continuously on recommended platform features, and anticipate continuous implementation, we propose two changes:

Securing the licensing obligations of all Working Group participants to essential claims in Candidate Recommendations (via the periodic Snapshots) in addition to eventual Recommendations.
Securing contribution licenses, upon contribution, to the contributor's essential claims implicated by a contribution.

Why do we need license obligations to apply at CR?

There are two reasons to apply patent license obligations to Candidate Recommendations in addition to Recommendations:

CR is an official “Call for Implementations,” at which point the W3C Process requires implementations to exist in order to demonstrate adequate implementation experience and interoperability before the spec can proceed to Recommendation. Prospective implementors may be deterred by patent promises that become licenses only if and when the spec reaches Recommendation.
Particularly in the "Living Standards" mode, specifications may exist in CR for many years while collecting implementation experience and iterating on features. Many groups want the specification to be able to fully function as a Web standard during this time, rather than awaiting Recommendation status, and hence want the RF license available on these Candidates.

Do we need contribution licenses?

W3C Community Groups and the WHATWG include contribution-based licensing obligations (in addition to full-spec all-participant signoff). The obligation is incurred by a contributor for their own essential claims arising out of their own contribution, and takes effect after a brief waiting period.

Reasons to include a contribution-based license:

Parity with W3C Community Groups and the WHATWG IPR policies. At least some participants have articulated this lack as a deterrence to moving work from a Community Group.
Protection for early implementers of a specification, at least from the contributor of the feature they are implementing.

Patent Policy Update Approach

We recognize that changing the W3C Patent Policy is a major undertaking, requiring review from lawyers and from the W3C Advisory Committee. However, we believe this will be less complex for the full W3C community than the creation of a separate track, with its own distinct patent policy and the associated challenges of moving between the two.

Approach

The suggested approach is to start from the existing W3C Patent Policy and incorporate the necessary changes, using language derived from the WHATWG IPR Policy (and the Evergreen variant) where appropriate to build on that experience.

(The prior Evergreen PP draft assumed a distinct track, so it provides a less useful starting point for a single policy.)

Schedule

W3M and the W3C Advisory Board, who represent the Membership, aim to deploy Process 2020 and the updated Patent Policy 2020 by the end of Q2 of 2020.

Working backwards in time, this means submitting it for AC approval by the beginning of May 2020, which means sending it to the AC for informal review by March so that any comments can be addressed in April, which means getting it approved by the Advisory Board, PSIG, and W3M by end of February.