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The Internet

W3C Patent Board Recommends Royalty-Free Policy 119

Bruce Perens writes "A year ago, the World Wide Web Consortium proposed a policy to allow royalty-generating patents to be embedded in web standards. This would have been fatal to the ability of Free Software to implement those standards. There was much protest, including over 2000 emails to the W3C Patent Policy Board spurred on by a call to arms published on Slashdot. As a result of the complaints, I was invited to join W3C's patent policy board, representing Software in the Public Interest (Debian's corporation) -- but really the entire Free Software community. I was later joined in this by Eben Moglen, for FSF, and Larry Rosen, for the Open Source Initiative." Bruce has written more below - it's well worth reading.
After a year of argument and see-sawing, W3C's patent policy board has voted to recommend a royalty-free patent policy. This recommendation will be put in the form of a draft and released for public comment. There will probably be a dissenting minority report from some of the large patent holders. Tim Berners-Lee and the W3C Advisory Committee, composed of representatives from all of the consortium's members, will eventually make the final decision on the policy. My previous interaction with the Advisory Committee and Berners-Lee lead me to feel that they will approve the royalty-free policy.

The policy will require working group members to make a committment to royalty-free license essential claims - those which you can not help infringing if you are to implement the standard at all. There is also language prohibiting discriminatory patent licenses. The royalty-free grant is limited to the purpose of implementing the standard, and does not extend to any other application of the patent. And there is a requirement to disclose whether any patent used, even a non-essential one, is available under royalty-free terms, so that troublesome patents can be written out of a standard. The limitation of the scope-of-use on patents, and some other aspects of the policy, are less than I would like but all that I believed we could reasonably get. Eben Moglen may have some discussion regarding how GPL developers should cope with scope-of-use-limited patent grants from other parties. For now, it should suffice to say that while this is less than desirable, is will not block GPL development.

I'm not allowed to disclose how individual members voted, but I'll note that the vote did not follow "friends-vs-enemies" lines that the more naive among us might expect - so don't make assumptions.

Now, we must take this fight elsewhere. Although IETF has customarily been held up as the paragon of openness, they currently allow royalty-bearing patents to be embedded in their standards. This must change, and IETF has just initiated a policy discussion to that effect. We must pursue similar policies at many other standards bodies, and at the governments and treaty organizations that persist in writing bad law.

For me, this process has included two trips to France (no fun if you have to work every day) and an appearance at a research meeting in Washington, a week in Cupertino, innumerable conference calls and emails, and upcoming meetings in New York and Boston. That's a lot of time away from my family. Larry Rosen has shouldered a similar burden while nobody has been paying him for his time and trouble, and Eben Moglen put in a lot of time as well. Much of the time was spent listening to royalty-bearing proposals being worked out in excrutiating detail, which fortunately did not carry in the final vote. We also had help from a number of people behind the scenes, notably John Gilmore, and the officers and members of the organizations we represent.

I'd like to give credit to HP. Because I was representing SPI, and HP had someone else representing them at W3C, I made it clear to my HP managers that they would not be allowed to influence my role at W3C - that would have created a conflict-of-interest for me, as well as giving HP unfair double-representation. HP managers understood this, and were supportive. During all but the very end of the process, HP paid my salary and travel expenses while they knew that I was functioning as an independent agent who would explicitly reject their orders. Indeed, HP allowed me to influence their policy, rather than the reverse. This was the result of enlightened leadership by Jim Bell, Scott K. Peterson, Martin Fink, and Scott Stallard.

For most of the existence of Free Software, technology has been of primary importance. It will remain so, but the past several years have seen the emergence of the critical supporting role of political involvement simply so that we can continue to have the right to use and develop Free Software. I do not believe that we will consistently be able to code around bad law - we must represent what is important about our work and involve ourselves in policy-making worldwide, or what we do will not survive. I hope to continue to serve the Free Software Community in this role.

Respectfully Submitted

Bruce Perens
"
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W3C Patent Board Recommends Royalty-Free Policy

Comments Filter:
  • Free Software (Score:3, Interesting)

    by Thnurg (457568) on Monday October 07, 2002 @08:13AM (#4401809) Homepage
    Did Bruce say "Free Software Community"?
    There's still hope that he'll join the light of Free Software rather than the slightly off white of Open Source.
  • by joe_fish (6037) on Monday October 07, 2002 @08:16AM (#4401814) Homepage Journal
    One of the W3C standard affected by this will be XPointer (http://www.w3.org/TR/xptr/). Sun holds a key patent to an implmentaion of XPointer, and the last time I looked had a discriminatory license on this patent.

    The interesting bit about the licence this this patent is that it uses patent law to enforce openness in the same way that the GPL uses copyright law to enforce openness. Effectively the licence to the patent says something like:"if you use technology protected under this patent then enhancements must be handed over to W3C". Obviously many people see this as anti-microsoft's embrace-extend-extinguish policy. (See http://www.xmlhack.com/read.php?item=985) for more.

    More interestingly I had a chance to ask RMS if he thought using patent law to enforce openness was a good thing, and his answer was words to the effect of - "well it might be but we've never had the money to patent the things we've invented"

    So whilst we are all cheering this decision (and in general I think it is a good decision), there are implications of this that are not obvious.

    Does anyone know if Sun's policy has/will change on this?

  • by yerricde (125198) on Monday October 07, 2002 @08:41AM (#4401906) Homepage Journal

    So as long as the patent is royalty free then there should be no problem.

    Unless the patent gets sold to somebody who terminates the royalty-free license (Forgent anyone? [slashdot.org])

  • by grahamm (8844) <gmurray@webwayone.co.uk> on Monday October 07, 2002 @08:46AM (#4401929) Homepage
    Could it not be made a (contractual) requirement that in order for a patented 'process' to be included in a standard that a royalty-free non-revokable licence be issued (at the time of inclusion in the standard) covering any implentation of the standard?
  • Is this possible? (Score:2, Interesting)

    by yerricde (125198) on Monday October 07, 2002 @09:13AM (#4402033) Homepage Journal

    Could it not be made a (contractual) requirement that in order for a patented 'process' to be included in a standard that a royalty-free non-revokable licence be issued (at the time of inclusion in the standard) covering any implentation of the standard?

    Is it possible to write a contract that binds all possible assignees of a patent?

  • by Tony-A (29931) on Monday October 07, 2002 @10:31AM (#4402559)
    Today we have a few nonstandard browsers.
    Tomorrow we will have a good number of standard browsers.
    Who would want a nonstandard browser?
  • by chris_lilley (107848) on Monday October 07, 2002 @12:12PM (#4403380) Homepage
    "On occasions people have been flying to WG meetings and the patent terms of the meeting have changed while they were in mid air."

    Actually that is completely incorrect. What actually happened was that the patent policy for a group (the second SVG WG) was expicitly set to Royalty Free in the call for participation, many weeks before the meeting.

    The issue was not that the policy changed "in mid air" but that it did *not* change; the assumption had been, apparently, that we would change to RAND (while they were in midair); we did not change to RAND and I stand by that decision, as chair of the relevant WG.
  • by Zeinfeld (263942) on Monday October 07, 2002 @01:03PM (#4403803) Homepage
    Actually that is completely incorrect. What actually happened was that the patent policy for a group (the second SVG WG) was expicitly set to Royalty Free in the call for participation, many weeks before the meeting.
    The issue was not that the policy changed "in mid air" but that it did *not* change; the assumption had been, apparently, that we would change to RAND (while they were in midair); we did not change to RAND and I stand by that decision, as chair of the relevant WG.

    Sounds to me that you admit that the statement is not 'completely incorrect' since you admit the basic issue that people were travelling to the meeting under the belief that there would be different IPR terms to the ones imposed. Whether or not you are correct in asserting that the terms did not change more than one member believes that their 'assumption' as you put it was well founded.

    There is a lot more to the patent issue than royalty free versus non royalty free. I am not aware of any major standards effort in the Internet space that has voluntarily adopted encumbered technology unless there was absolutely no other choice. The only group I am aware of that was formed recently under RAND with royalties was XrML which is in the DRM space which is a known patent minefield.

    The issue which W3C had difficulty understanding for the longest time was reciprocal licensing. There are many patent holders who are quite willing to allow royalty free use of a patent for a standard provided that a competitor cant then come and demand royalties for their patent while getting to use the other patent for free.

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