Re: [FYI] W3C and the Promotion of Fee-based Standards for the Web

[Florian Weimer <fw@deneb.enyo.de>]

Florian Weimer <fw@deneb.enyo.de> writes:

> Ich bin gerade dabei, einen Kommentar zusammenzustellen, und hoffe,
> daß ich ihn noch rechtzeitig fertigbekomme.

| Thank for taking the time to comment on the proposed W3C Patent
| Policy.  A response to the issue(s) you raise will be included in
| the disposition of comments to be used by the Patent Policy Working
| Group in preparing a final proposal.

Sieht ja schon mal nicht schlecht aus, offenbar war ich noch
rechtzeitig dran. Unten das, was ich heute mit recht heißen Tasten
zusammengeschrieben habe.

     _________________________________________________________________


[A PDF version with additional markup is availble at:
http://www.s.netic.de/fw/w3c-patent-policy-2001-09-30.pdf]

             Comments On The W3C Patent Policy Framework Draft
                                      
                               Florian Weimer
   
  Abstract:
  
   This document expresses some concerns regarding the W3C Patent Policy
   Framework, W3C Working Draft 16 August 2001,
   http://www.w3.org/TR/2001/WD-patent-policy-20010816/.
   
   Our concerns range from general problems due to the proliferation of
   patents in Web-related areas, over a few editorial issues with the
   Draft, to design defects in the protocol outlined in the Draft.
   
                            1 The Effect Of Patents
                                       
   In this document, unless explicitly noted, the term patent refers to a
   right granted by government to an inventor which gives the inventor a
   monopoly (usually limited in time) in the exploitation of a specific
   invention, in exchange for public disclosure of said invention. In
   some jurisdictions, this definition is broader than what is commonly
   called a patent (see section 2.1 for details).
   
1.1 Patents, The Internet, and Web Technology

   There is an ongoing debate whether patent-based monopolies, originally
   implemented in law to encourage research, stiffle innovation in the
   Internet and Web technology sector. We have reservations towards
   patents in general, but the currently existing combination of
   patentable trivialities, poor patent review, low patent description
   quality, huge delays, and the wide neglect of patent research during
   protocol design and software development makes it hard to believe that
   the benefits of full disclure outweigh the detrimental effect of
   monopolies on markets.
   
   However, patents are an existing factor, and the World Wide Web
   Consortium has to take them into account, even though patents are a
   burden for open standards. A Patent Policy reflecting the current
   problems is therefore necessary. However, W3C should be careful in
   oder not to destroy their authority on Web standards by adopting a
   policy which results in open, but unimplementable to many standards.
   
   Since other submitted comments on the Draft already give strong
   arguments against the shift in favor of patent holders, in the
   following, we mainly address issues with the proposal itself, under
   the hypothesis that the reasonable, non-discriminatory licensing terms
   model is acceptable to some degree and is implemented according to the
   Draft, although the author strongly believes that the political and
   practical implications do not lie in the interests of W3C and its
   Members.
   
1.2 Delayed Enforcement Of Patents

   Unlike trademarks, which are weakened if the owner neglects to enforce
   them, patents can be enforced very selectively in most jurisdictions.
   In the form of Delayed Enforcement of Patents (DEP), this property of
   patents poses the main threat to an infrastructure of open standards.
   
   Because of the likelyhoid of Unintended Patent Infringement (UPI), the
   DEP threat is very real. Unlike copyright infringement and breach of
   non-disclosure agreements, patent infringement cannot be avoided by
   clean-room protocol design or software development. In some areas of
   technology, unintended infringement is very likely since a large
   number of trivial patents have been granted, or patents covering the
   nature of a problem and not its solution.[1]
   
   Note that it is not in the interest of a patent holder (especially the
   holder is not engaged in W3C activities, for example, because it is
   patent-collecting company, and not a software developing one) to alert
   a Working Group of UPI situations, especially if the Recommendation
   being drafted can be expected to be widely implemented. For the patent
   holder, DEP is probably more profitable, i.e. to wait for the
   deployment to occur and then threaten to sue implementors because of
   UPI.
   
   In some jurisdictions, distributed DEP is possible, that is DEP and
   finally lawsuits against resellers and end users, and not protocol
   designers or software developers. In this situation, software
   developers in turn face a very significant number of lawsuits from
   their customers, forcing them to accept virtually any patent license
   terms.[2]
   
   Although the risks of DEP cannot be avoided entirely, one goal of a
   W3C Patent Policy has to be to reduce the risk of DEP by its Members.
   Therefore, the Draft has to be carefully checked if there are any
   loopholes, substantial or not.
   
                              2 Editorial Issues
                                       
   This section deals with mere editorial issues. Editorial issues can be
   corrected by wording changes which do not alter meaning.
   
2.1 Improper Terminology

   The Draft uses the abbreviation RAND for reasonable,
   non-discriminatory as in RAND licensing terms. This seems to be
   unfortunate because RAND is already a trademark. (The RAND Corporation
   of America will certainly be annoyed by defamatory comments on ``RAND
   licensing terms''.)
   
   The Draft focuses on patents. However, in some jurisdictions there are
   additional methods to protect inventions, comparable to patents in
   scope and effect, but differing in some aspects (for example,
   duration, or conflict resolution). Usually, these protection methods
   are not included in the term patent.[3] It is not clear whether these
   methods are covered by the Draft or not. (Copyright can have an effect
   on implementations as well, but due to the nature of copyright, a
   Working Group can notice such issues very early and always avoid
   detrimental effects on implementors.)
   
                               3 Design Defects
                                       
   This section deals with defects in the protocol defined in the Draft.
   In this section, we assume that the reasonable, non-discriminatory
   licensing terms licensing model is implemented--however, this should
   not be taken as an expression in favor of reasonable,
   non-discriminatory licensing terms. The discussion below is purely
   academic.
   
3.1 The DEP Risk Is Underestimated

   In section 1 of the Draft, patent issues are presented mainly from a
   Member's point of view, and its Working Group activities:
   
     The root of the challenge posed by patents in any standards arena
     is that participants in a standards body will be unwilling and
     unable to work collaboratively if, at the end of the process, the
     jointly-developed standard can only be implemented by meeting
     licensing terms that are unduly burdensome, unknown at the
     beginning or even the end of the design process, or considered
     unreasonable.
     
   This seems to neglect that the W3C aims at standards for the entire
   World Wide Web, and not only its members, and at standars for actual
   implementation. The DEP threat should be mentioned explicitely. In the
   worst case, not only the work of some Working Group members was
   fruitless, or that of the entire Working Group, no, in the worst case,
   the Recommendation is implemented widely before the patent
   infringement claims are raised. It is extremly complicated and
   time-consuming to replace already deployed client-side technology, and
   distributed DEP can force a software developer to accept very
   unfavorable licensing terms because fighting against the patent would
   be even more cost-intensive.
   
3.2 The Definition of Essential Claims

   There seems to be a defect in the defintion of an Essential Claim:
   
     ``Essential Claims'' shall mean all claims in any patent or patent
     application with an effective filing date within one year and one
     day after the publication of the first Public Working Draft, in any
     jurisdiction in the world [...]
     
   The time limitation is confusing and unnecessary and complicates the
   analysis of the patent disclosure protocol. It is plain wrong if the
   first Public Working Draft cannot be considered prior art for the
   patent or patent application in question (for example, because the
   parts infringing the patent were added later).
   
   Even if the Public Working Draft was published at a date at which it
   could be considered prior art (given that the period of one year is
   sufficient for that), it is not clear if the existance of the Public
   Working Draft deters DEP or is a sufficient incentive to fight in
   court, and in the case of distributive DEP, it is unlikely that this
   is relevant at all.
   
   A claim is automatically non-essential if a workaround exists:
   
     Existence of a non-infringing alternative shall be judged based on
     the state-of-the-art at the time the specification becomes a
     Recommendation.
     
   With the exception of a patented transmission format, it is hard to
   believe that the possibility of a non-infringing implementation cannot
   be shown in all cases, in particular since there is no requirement for
   practicalness.
   
   In addition, it should be up to the Working Group to decide if the
   patent workarounds are acceptable, and even if non-patented
   workarounds do exist, the obvious approach is probably patented. As a
   result, the patent disclosure requirements are not as effective
   against UPI as they could be.
   
   Finally, note that ``the state-of-the-art at the time the
   specification becomes a Recommendation'' might not be known at the
   time at which patent disclosures are required.
   
   In addition, the exceptions stated later seem to be too wide to be
   effective to prevent DEP:
   
     * enabling technologies that may be necessary to make or use any
       product or portion thereof that complies with the Recommendation
       but are not themselves expressly set forth in the Recommendation
       (e.g., semiconductor manufacturing technology, compiler
       technology, object-oriented technology, basic operating system
       technology, and the like)[...]
     * the implementation of technology developed elsewhere and merely
       incorporated by reference in the body of the Recommendation.
       
   There is no reason to exclude related patents which might affect the
   implementability of the Recommendation from the disclosure
   requirements, given that it is not unlikely that a Recommendation will
   use certain concepts or technology which are already deployed or in
   the process of being deployed. In addition, some companies claim that
   ``basic operating system technology'' includes fairly elaborated
   concepts such as Web browsers, so such phrases should be used only
   with greatest care.
   
   A Working Group might consider such patents to be insignificant for
   the actual Recommendation, but their disclosure should be mandated
   nevertheless, to warn implementors and thus reducie the UPI risk.
   
3.3 Patent Licenses and Derived Recommendations

   The reasonable, non-discriminatory licensing terms and royalty-free
   licensing terms models both permit the following restriction:
   
     [...]may be limited to implementations of the Recommendation, and
     to what is required by the Recommendation[...]
     
   This does not take revisions of the Recommendation and related or
   derived Recommendations into account, resulting in DEP threats to the
   work of future Working Groups.
   
3.4 Denial Of Service Attack

   Patent holders can submit all their patents and patent applications
   and state that they might contain Essential Claims. If a large number
   of Essential Claims have to be considered, the protocol defined in the
   Draft fails miserably, especially since most of the people dealing
   with the patent disclosures do not have any expertise in dealing with
   consequences of patent law in multiple jurisdictions.
   
   As a side effect, a list of potentially essential patents published
   along with drafts looses much of its value when it is so long that
   considerable patent reviewing expertise is required to tell the good
   one from the
   
3.5 Good Faith Is Not Always Enough

   The Good Faith Disclosure Standards does not reflect the large number
   of patents held by some companies engaging in W3C activities. In these
   cases, lost or forgotten patents are not entirely unlikely. In
   particular, the following provision seems to be counterproductive:
   
     No extraordinary effort is required for patent disclosure
     requests[...]
     
   Patent portfolio reasearch at some W3C Members is an extraordinary
   effort, and a Member can and will miss something essential if thorough
   research is not done (if this is done deliberately or not does not
   matter).
   
3.6 What is reasonable? Non-discriminatory?

   It is not clear what ``reasonable, non-discriminatory licensing
   terms'' mean in practice. In addition, a patent license in the
   reasonable, non-discriminatory licensing terms spirit might change
   suddenly, creating a DEP potential. Similar concers apply to the
   royalty-free licensing terms requirements. The DEP prevention
   therefore lies entirely in the disclosure of the patent (makeing the U
   part in UPI less likely), and many ways to extort money from companies
   which have already deployed W3C Recommendation implementations remain.
   Certainly, a requirement for irrevocable license terms seems to be
   desirable.[23]4
   
3.7 Contractual Implementability

   It is not clear if the W3C Patent Policy Framework can be implemented
   in contracts with their Members. Given the definitions of reasonable,
   non-discriminatory licensing terms and royalty-free licensing terms,
   there is probably a huge potential of loopholes. On the other hand,
   some Members might not find the conditions favorable because they feel
   that the new reasonable, non-discriminatory licensing terms are either
   too permissive or too restrictive.
   
3.8 Patent Research

   Acitve patent research does not seem to be covered by this policy. It
   is a tool to prevent UPI and, therefore, DEP to some degree, but it is
   costly even if it is limited to a few countries.
   
3.9 What About Free Software?

   Clearly, patents pose a strong threat on Free Software. One of the
   freedoms commonly associated with Free Software is the freedom to
   distribute modified versions, and such a freedom is severly limited by
   a requirement for royalties which can araise from the use of patented
   technology.
   
   The W3C should ask itself if it really wants to take steps to ban the
   use of Free Software in major areas of the future World Wide Web (and
   more generally, the Internet). Free Software has proven to be a viable
   development model for providing the core technology infastructure of
   the Internet. Even in areas directly related to W3C activities, the
   importance of Free Softwareshould not be underestimated, at least when
   looking at the server side.
   
   Free Software always faces the threats of patents, but the tendency of
   the Draft towards reasonable, non-discriminatory licensing terms puts
   an unnecessary burden on Free Software. It might not be possible to
   put reasonable, non-discriminatory licensing terms off the agenda of
   the Patent Policy Working Group, but as a countermeasure, it should
   examine if there is enough interest in a third licensing mode, with
   the following characteristics:
   
     * The Free Software license terms shall enable Free Software[5] to
       implement the Recommendation (even partially and in different
       context). No royalties shall be required for the use or
       distribution of source code or object code. Note that these terms
       are broader than those of the current royalty-free licensing terms
       requirements.
     * Patent licenses issued under these terms for Free Software shall
       be irrevocable.
     * For proprietary software, either royalty-free licensing terms or
       reasonable, non-discriminatory licensing terms can apply.
       
   If the force de frappe theory is correct, most patent holders will not
   oppose such general licenses for Free Software because it is unlikely
   that they have to face threats from this direction, and from a patent
   policy point of view, there is no necessity for guaranteed mutual
   annihilation after the first strike.
   
                                   4 Summary
                                       
   In our view, the Patent Policy Working Group has to take the following
   steps before the Draft can be actually implemented:
   
     * Correct all the critical defects mentioned above.
     * In particular, the definition Essential Claims has to be fixed,
       and a irrevocable component has to be added to the license models,
       in order to reduce the UPI risks and the DEP threat.
     * Consider dropping the questionable reasonable, non-discriminatory
       licensing terms model, based on the strong arguments and
       objections from the community at large.
     * Implement a third licensing mode which favors Free Software if the
       reasonable, non-discriminatory licensing terms model cannot be
       dropped.
       
   Copyright © 2001 by Florian Weimer. All rights reserved.
   
   Permission is granted to make and distribute verbatim copies of this
   document provided the copyright notice and this permission notice are
   preserved on all copies.
   
     _________________________________________________________________
   
    Footnotes
    
   ...[1]
          Some observers and even large-scale patent holders suggest that
          part of the recent proliferation in software patents is due to
          the UPI risk, and that patent collections are used as a force
          de frappe, a long list of potential countering lawsuits.
          
   ...[2]
          DEP has already occurred, but was usually attributed to
          forgotten patents, but as of this writing, one case of planned
          DEP is on trial. Mechanisms similar to distributed DEP have
          already been used successfully against alleged trademark
          infringement.
          
   ...patent.[3]
          For example, in Germany, these additional methods are called
          Geschmacksmuster and Gebrauchsmuster, in contrast to Patente.
          
   ... desirable.[4]
          Adam Warner's submission contains a detailed analysis of the
          DEP risks associated with the current reasonable,
          non-discriminatory licensing terms procedures outlined in the
          Draft.
          
   ... Software[5]
          We do not give a definition of the term Free Software in this
          context. Some work is probably required to obtain an accetable
          definition, and there are a few open questions (for example,
          regarding the status of proprietary derivatives of Free
          Software). For an example of a more philosophical definition,
          refer to http://www.gnu.org/philosophy/free-sw.html.