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Journal Journal: Answers to your questions about the W3C patent policy

From: Pierre Machard
> Do you have any reason to think that the position you defend will
> satisfy Patent holders ?

Some of them have threatened to walk off of W3C in response to even so
mild a position as the draft policy. Nobody thinks they'll really do it.
But your question shows the problem: we can't control their behavior
through the standards organization. We need their cooperation to make
this work. Thus, we can't take a draconian position. The only way around
this is to get legislation, which is a worthy but uphill battle.

From: Nick Phillips
> I presume you've seen Rik van Riel's suggestion as posted
> to one of the SPI lists earlier. In fact it wouldn't surprise me if the same
> things triggered his message as yours, either directly or indirectly.

A number of people have suggested defensive patent pools. I think
I remember doing so in a 1997 article in . The three
problems are:

        1. Getting inventions.
        2. Getting money to file for patents. This is both legal fees to
              format the patent claim (which has to be right if you want to
              be enforcible), and filing fees.
        3. Getting money to file lawsuits. If you can't sue, nobody's going
              to be very interested in your claims.

I think that #1 could be handled by the community, #2 could at least be
started with pro-bono assistance from legal and engineering students, etc.
#3 doesn't have to come until later. If you want to run with the project,
please do so.

From: Wouter Verhelst
> It may not be a bad idea to have patent holders turn to a different
> standards body than people that object to software patents. If there are
> expensive 'standards' from one standards body and free standards from
> another, I feel that people would use the free standards, so that the
> patent holders would lose. Even if they have their own standard.

Well, there are about 100 existing organizations they could turn to,
including IETF (which has a joke of a patent policy IMO) and OASIS. It
would be very easy to do. I don't think making them do that would win
us anything.

From: James Antill
From Bruce:
> > The code that makes use of
> > the patented principle must be under the MIT license, which allows a
> > scope-limited patent license. That may be linked into GPL code and
> > distributed.
> How does this work?
> Say I have "xmms", which is GPL code that I didn't write ... and I
> want to implement some w3c std. that contains one of these patents. So
> I do the code as an MIT license, but I'm going to have to link it to
> the GPL'd code ... it's going to be a _derivative work_ ... so the
> code is basically GPL, no matter what I put at the top of the file.

The GPL terms on linking are that all parts of the derivative work must be
under a license with _no_additional_restrictions_ on top of those in the
GPL. The GPL does not prevent you from _removing_restrictions_, as long
as you are the copyright holder on the portion of the code in question.

From: Andre Lehovich
> I've been trying to comment on the draft patent policy.
> The link below -- to approve inclusion of my comments in the
> official archive -- doesn't work for me, returing a 404.

It's breaking for everyone, I think. I notified Danny Weitzner, the Patent
Policy Working Group chair.

Attention anyone whose message doesn't appear here: thanks for writing!
As usual, I am buried in mail and stuff to do, so although I read them
all, I can't answer every message individually.


        Bruce Perens

User Journal

Journal Journal: Please Support the W3C Patent Policy Draft 3

To All Members of the Free Software and Open Source Community,

For the past two years, I've been working on the W3C patent policy on
your behalf, to make it safe for Free Software to implement W3C standards.
Now, I'm worried that we could lose that fight, not because of the patent
holders, but because of our own community.

There's a long discussion below. I'm asking you to do something once you
read that discussion: Please write to
and tell them something like this (please elaborate - everyone discounts
rubber-stamp comments):

        Subject: Approve of draft policy - disapprove of software patenting.

        I request that W3C approve the draft patent policy, because it's a
        compromise that protects the right of Open Source / Free Software
        programmers to implement W3C standards.

And you may want to add this:

        I object to software patents, and support efforts to eliminate them
        at the legislative level.

Now, to the discussion.

Three representatives of the Free Software / Open Source community:
myself, Larry Rosen of the Open Source Initiative, and Eben Moglen of
the Free Software Foundation, worked on the W3C patent policy for two
years. We spent between 1/8 and 1/4 of our time on the project for all
of that time, participating in many face-to-face meetings and conference
calls. Across the table were some companies that, I feel, wanted to
"farm" their own patents in W3C standards and would have erected
lucrative "toll-booths" to collect royalties from every implementor of
web standards. If they had their way, we would have been locked

We got you the best deal we could get. It's not everything we want,
and it can't be. The draft policy is at .

The proposed W3C patent policy grants a royalty-free right for everyone
to practice patents that are embedded in the standard by W3C members who
own those patents. It prevents "patent farming", the biggest problem
that faced us. The problem is that the patent grant is limited - it only
applies to code that actually implements the standard. This is called a
"field-of-use" limitation. The problem this creates for the Free Software
community is that other uses of the same patent in our code, for anything
but implementing the standard, could be covered by royalties.

I object to software patents entirely, and many of you do as well. Why,
then, did I (on your behalf) approve of a policy containing that
limitation, and why am I asking you to support it?

The answer is simple. Patent holders won't continue their membership
in W3C if that membership forces them to give up their patent rights
for non-standards-related applications. They will instead move their
standards-making activities to other organizations that allow them to
charge patent royalties on the standards. And we will have lost.

It comes down to what we can compel people to do, and what they won't
stand for. The patent holders want the W3C brand on their standards,
and will give up something for that. If we ask them to give up more,
they'll do without the W3C brand, and we have no way to control what
standards organization they move to. If we wish to fight software patents
outside of standards, I think our only choice is to do so at the legislative

The field-of-use limitation presents special problems regarding the GPL,
because the GPL disallows a field-of-use-limited patent license. There is a
work-around for this. The code that makes use of the patented principle
must be under the MIT license, which allows a scope-limited patent
license. That may be linked into GPL code and distributed. I'm less than
comfortable with this, but my discomfort arises from the basic injustice
of software patents. A work-around is the best we can do in this case.

FSF, by its tenets, was bound to protest the field-of-use-limitation.
I respect that protest, as it is rooted an a belief that I share - that
software patents are fundamentally wrong. However, if the Free Software /
Open Source community comes out against the W3C patent policy, and the
patent holders who want unlimited rights to charge royalties come out
against it, just who will speak for it? The result will be that W3C
will fail to give final approval to the policy, and we will not even have
the limited protection from software patents that we've won. Thus, I
have to ask you _not_ to do what FSF asks this time. Of course, this
disagreement does not diminish my respect of FSF, and I will continue
to work with them as I have on many projects for years.

Thus, I'd like you to write that email now. It's very important that W3C
see support for the draft policy, or we'll be back to the old, bad policy
again. Thanks!

As always, please feel free to call me to discuss this at 510-526-1165
(California time) or write me at .


        Bruce Perens

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