W3C Makes Patent Ban Final
Web Design & Technology News, May 21, 2003

May 21, 2003

The Web's leading standards body on Tuesday finalized a patent policy banning the use of most royalty-bearing technology in its technical recommendations, an issue that sparked a clash between open-source advocates and software makers.
By Paul Festa
with contributing writer Lisa M. Bowman

The Royalty-Free Patent Policy, announced by the Patent Policy Working Group of the World Wide Web Consortium (W3C), has changed little from a draft released eight weeks ago. In shutting fee-bearing patents out of standards development in all but exceptional cases, it marks a compromise between open-source advocates and proprietary software companies.

Patents have been a flashpoint in a battle between the open-source community and proprietary software companies. Some proprietary software makers cash in on large patent portfolios by requiring licensing fees and may be reluctant to give away the rights to intellectual property after investing time and money creating the technology. On the other hand, many in the open-source community believe patents impede the development process and can clog the adoption of standards.

In announcing the policy, W3C director Tim Berners-Lee hearkened back to the donation in 1993 of the founding protocols of the Web by the European Organization for Nuclear Research (CERN), his then-employer.

"This decision on the W3C patent policy coincides almost exactly with the 10th anniversary of CERN's decision to provide unencumbered access to the basic Web protocols and software developed there," Berners-Lee wrote in the decision paper. "The decision to base the Web on royalty-free standards from the beginning has been vital to its success until now... By adopting this Patent Policy, with its commitment to royalty-free standards for the future, we are laying the foundation for another decade of technical innovation, economic growth and social advancement."

Bruce Perens, a prominent patent foe and a participant in the W3C's deliberations, applauded the move, while warning that the consortium had left its process vulnerable to "submarine" patents.

"It's not bulletproof," Perens said in an interview on Wednesday. "But it's an improvement."

Perens--a cofounder of the Open Source Initiative who recently received a $50,000 grant to fund his antipatent activism--said that while the W3C patent policy represented a victory for patent-free standards and the open-source software development projects that rely on them, it also left the standards-setting process vulnerable in many ways.

One such threat is the so-called submarine patent, which is a patent filed, but not granted, at the time a W3C technical recommendation is under construction.

"(Patent holders) don't tell anyone about (the patent), and it becomes granted, and then it's the first time we can see it," Perens said. "We will try to watch out for people's patents. But patent searches are rarely conclusive, because patents are so poorly descriptive."

The major variable in the patent-policy process, according to Perens, is identifying when royalty-encumbered technology has been "knowlingly," or intentionally, submitted for standards consideration by a company. The W3C working group member representing that company may be ignorant of the royalty--or may be kept ignorant by design.

Perens--who votes on the Patent Policy Working Group as an "invited expert," but who is still seeking a donor willing to pay for his W3C membership--cited W3C rules in declining to say who had voted against the policy. But he did state that "among companies devoted to Linux and open source, there are some who have very large known patent portfolios who aren't always on our side."

Microsoft, SAP and IBM--which has made Linux a centerpiece of its strategy and has earned more patents annually than any other company for the past 10 years in a row)--are among the industry heavyweights that have bypassed the W3C because of its patent policy. Meanwhile, they have brought certain Web services specifications to the Organization for the Advancement of Structured Information Standards (OASIS) for development.

IBM, in the awkward position of being between the wealth of its patent portfolio and the demands of open-source developers on whom it relies, declined to say how it had voted on the proposal. But an IBM representative said the company supported the finished policy.

"IBM believes that the resulting patent policy is well-developed and defined, and is appropriate to attend to the needs of Web infrastructure vendors and users alike," representative Scott Cook wrote in an e-mail interview.

The new policy carves out an exception for the use of royalty-bearing patents whose technologies W3C working groups find they cannot work around. Incorporating the patented technology requires a vote of the W3C advisory committee and the approval of the consortium's director.

Perens said that exception was his primary goal for raising the money to join the group as a full member.

"Why would I want to be at W3C? Because of the escape valve," Perens said. "I want to be there to object if someone tries to use it."