Backgrounder on Patent Policy Working Group Royalty-Free Patent Policy - 26 Feb 2002 Public Working Draft

26 February 2002

Summary

In response to Public and W3C Member comments, as well as a series of discussions by the W3C Advisory Committee (resulting in an Action Item to develop an RF Patent Policy), the W3C Patent Policy Working Group has been developing a draft Royalty-Free patent policy whose goal is to produce W3C Recommendations that can be implemented on a Royalty-Free (RF) basis.

This patent policy has five major components:

1. Royalty-Free licensing goal: Any W3C Recommendation developed under this policy must be implementable on a Royalty-Free basis.
2. Licensing commitments for Working Group participants: Every participant in a Working Group developing a W3C specificaiton must agree to license any essential patent claims it holds on a Royalty-Free basis. (There is a process for 'excluding' specific patents from this commitment, but that must be done very early in the process.)
3. Definition of a royalty-free license: RF terms means that the specification can be implemented at no cost, but also that implementers are free of other restrictive, non-monetary terms. Patent holders will retain the right to certain 'defensive suspension' of their patents in the event they are sued by those using their patents.
4. Disclosure rules: All W3C Member must disclose patents they know are likely to contain essential claims unless they have committed to license patents they hold on an RF basis.
5. Exception handling: For situations in which the Royalty-Free status of a specification comes under question, there is a dispute resolution process that will determine whether the Recommendation should issue, should be re-designed to avoid the patents in question, or other steps.

The Working Group is releasing this public working draft in to seek comment from the larger Web community and will take public comments into account. Though the basic outline of this policy is now stable, but it remains a work in progress, with several significant issues remaining unresolved.

Changes from August Last Call draft

The following major changes the the policy have been made between the 16 August 2001 Last Call draft and the 26 February 2002 Public Working Draft:

• RAND track removed: There is no process in this policy for developing RAND specifications, however, the Working Group has an open question from about what options there are for accommodating RAND technologies in exceptional circumstances.
• Membership-wide RAND licensing commitment replaced with RF licensing commitment for Working Group participants only.
• Defensive suspension allowed in the case where a holder of essential claims is sued for patent infringment in the implementation of a W3C Recommendation.

Note on status of RAND technologies: Neither the Patent Policy WG, nor the W3C Membership as a whole has a final decision about what role, if any, RAND technologies will play in the final policy. Both public and Member comments had a significant impact on the direction of the policy, which is puts a high priority on developing RF specifications. However, many W3C Members feel that there should be a way a deadling with technologies only available on RAND terms within the W3C Process, at least on an exceptional basis. This issue remains open.

Next Steps

Before the patent policy is finalized, at least one more public draft will be released for Last Call review. Following the normal W3C Process for approving technical Recommendations, after that Last Call, we will prepare a final draft (Proposed Recommendation) for W3C Advisory Committee Review, after which the Director will determine the final disposition of the policy.

Daniel Weitzner, Chair
Patent Policy Working Group