W3C Patent Policy Comments That Failed to Get Posted

Seth Johnson seth.johnson at realmeasures.dyndns.org
Wed Jan 1 05:33:07 UTC 2003

To the W3C Patent Policy Working Group:

I have received the following comments from various other
online sources, all indicating that they have been sent to
the www-patentpolicy-comment at w3.org list.

However, these comments have not shown up tonight, the final
day of the comments period;  I am therefore forwarding them
below and cc'ing their authors.

Comments by the following authors follow:

1) Jay Sulzberger <jays at panix.com>
2) David Kaufman <david at gigawatt.com>
3) Edward Welbourne <eddy at chaos.org.uk>
4) Ward Vandewege <ward at pong.be>
5) Jim Bray <jb at as220.org>

Thank you,

Seth Johnson

---------- Forwarded message ----------
Date: Tue, 31 Dec 2002 15:51:55 -0500 (EST)
From: Jay Sulzberger <jays at panix.com>
Subject: Against Item 3 of Section 3 of the proposed Policy
on Patents

Dear Patent Policy Working Group of the World Wide Web

The buggy Item 3 of Section 3 of the proposed W3C Policy on
Patents allows for patent encumbrances of
standards-compliant software.  Up to now, the W3C has not
allowed such encumbrances.  Up to now the Web has been built
with un-encumbered software.  Up to now those pushing for
encumbrances have lost in the market for web servers and
have lost in any free market for web clients.  If the buggy
policy document is adopted a special advantage will be
granted to patent holders, which means, in the main, large
companies and cartels.  These large companies and cartels
did not build the Net, we did and we did it using
un-encumbered software.  There is no reason to grant these
companies and cartels special privileges.  It is known that
any patent encumbrance is effective at stopping commercial
and often non-commercial development and use of encumbered
software.  A patent encumbrance need not be plain and direct
to do such damage; an indirect, obscure, and uncertain
threat of patent encumbrance is usually equally effective. 
Patent encumbrances can only decrease inter-operability and
increase the barrier to entry in the market for software.

The World Wide Web Consortium has at this juncture a chance
to act in the interest of all, rather than in the imagined
self-interest of a small and economically unimportant group
of special interests.  I say "small and economically
unimportant" because they are.  They are a few companies
whose combined capital is much less than than the wealth of
the billion people who make use of the Web for their own
private, business, and public purposes.  Of this billion, a
negligible number would vote to have the Web less
competitive, less efficient, and less free than it is
today.  That means that the real stakeholders, the people of
the world, are overwhelmingly against adoption of Item 3 of
Section 3 of the proposed Policy on Patents.

Jay Sulzberger

For purposes of identification only:

I am the Corresponding Secretary of LXNY, New York's Free
Computing Organization.

---------- Forwarded message ----------
Date: Mon, 30 Dec 2002 14:22:10 -0500
From: David Kaufman <david at gigawatt.com>
Subject: Comments: the "field of use" restrictions in
Section 3 Item 3 of the proposed W3C Patents Policy

    Patent Policy Working Group
    World Wide Web Consortium

    David Kaufman <david at power-data.com>
    Power Data Development
    87 East 21st Street
    Bayonne, NJ 07002

Re: W3C Patents Policy, Section 3 Item 3 "field of use"

I'm writing to add my voice to those calling for the removal
of the "field of use" restrictions in the current wording of
the proposed W3C Patents Policy.

As a web developer, I rely on *truly* free software each day
for the operation of my business.  I choose to use only Free
Software, as defined by the Free Software Foundation
(www.fsf.org), and not merely the more broad range of other
"open source" software because, to remain competitive in
this industry, I must be free to modify and redistribute
software without legal restrictions, in order to deliver
secure and reliable products and services to my customers.

The freedom to modify and redistribute software should not
be restricted to the so-called "web" or even "the Internet"
as fields of endeavor, because the business use of the web
and internet themselves are hardly relevant when not tightly
bound to the context of a particular business, industry,
field of study, or some other narrow area of human endeavor.

Patents allowing so-called free software that is restricted
to the internet would be more harmful than helpful to most
of the single field to which it *is* limited, the web. 
Why?  Well, how could internet software written for a
bookstore not be construed as being used in *both* the
internet, and the publishing industry?  Therefore future W3C
patented software and protocols that are freely modifiable
and redistributable only to the "web" or internet industries
would be neither freely modifiable nor redistributable when
an online publisher, for instance, uses these to create an
OS-specific GUI application, that is protocol-compatible
with their web site, built using not-completely-free tools. 
A non-web application that allows their staff to edit books
in their database would be merely a publishing industry
application, or a database application, that the patent
owner might decide to license restrictively for developers
to be allowed to *let it* talk to the website using a
W3C-patented storage system, communications protocol, file
format, or even, Amazon taught us, any simple-but-patented

Such a situation would create a loophole for economical
opportunism that no corporation could or would resist
driving their delivery trucks through.

Companies would soon be rushing to W3C patent applications,
protocols and other software ideas (which should *never* be
patented in the first place) (think: Amazon-One-Click) and
use the W3C's reputation to market these products as "free
and open" in order to lure developers and create a large
installed base of users who were mistakenly led to believe
that these tools were in fact Free (as in freedom) and that
any company's developers, including their own, were free to
use them to extend and enhance their use and enjoyment of
the software, when in fact, those freedoms would be quite
restrictable by the patent owners.

The obvious second step is to then create proprietary
industry-specific tools, GUI, OS/Specific user interfaces,
or any other "non-web" tools for which these is No Freedom,
for which only the patent owner may legally develop and sell
solutions, and for which the users, the users' programmers
and the entire "third-party" developer marketplace, must pay
hefty licensing fees to compete, or possibly be simply
forbidden from competing at all.

The GPL prevents this unfortunate situation by placing no
restrictions *whatsoever* on the modification and
redistribution rights granted to everyone, except one
sensible one: no one may circumvent freedom bestowed on the
software by the GPL license by simply *redistributing* and
placing a *more* restrictive license on the redistributed
version.  This sole limitation closes the legal loophole of
control of ideas, and protects the rights of the developers,
the users, by restricting only the rights of those who would
seek to further restrict or control the complete freedom
rights that the developer intends, and this is why the GPL
is used and championed by so many developers such as
myself.  It keeps freedom free.  Any lesser license is
vulnerable to the completely legal theft, control and
exploitation of ideas.

I urge the W3C and the Patent Policy Working Group to
consider this matter seriously, and take the position that
is best for the users and developers of the large body of
excellent and truly free software that has made the internet
what it is today.

Please do not create a W3C-sanctioned loophole that must by
it's very existence be exploited by the natural profiteering
tendencies of normal competitive corporations which *must*
bow to competitive pressures to profit by trying to legally
own, control, license and otherwise restrict the use of the
high quality best-practices ideas, and industry standards
and other intellectual property that the W3C develops. 
These should remain the property of the public, not of
corporations, and only a Free Software Foundation approved
license can ensure exactly that those property rights are

Thank you in advance for your consideration to this matter. 


David Kaufman
<david at power-data.com>


www.Gigawatt.com / Power Data Development \ www.ClickSQL.com
         Hosting         Scriptage          Databasics

87 East 21st Street, Bayonne, NJ  07002
(201) 436-0668

-------- Original Message --------
Date: Tue, 31 Dec 2002 17:16:48 +0000
From: Edward Welbourne <eddy at chaos.org.uk>
Subject: Patent Policy


> The W3C Royalty-Free Patent Policy governs the handling of patents in
> the process of producing Web standards.

A very important topic.  Many pieces of software in the
modern world are naturally obliged to interact with the
world-wide web; it is crucial that the web thus be governed
by open standards, if innovation is to continue to flourish
on and around the web.  A standard whose implementation is
covered by a patent cannot be sensibly described as open
unless the patent is first de-fanged.

> The goal of this policy is to assure that Recommendations produced
> under this policy can be implemented on a royalty-free basis.

(aside: assure ... `ensure' seems more apt ...)

I contend that this goal is too tame: software designed to
interoperate with the Recommendations must also be
implementable on a royalty-free basis, even if the software
in question is not countenanced by the Recommendations.

Both Web Servers and User Agents (to give the most obvious
examples) are significant and complex bodies of software
which support mechanisms for third-party code to provide
added functionality at run-time (e.g. flash and kindred
plugins for browsers, or [NI]SAPI server-side extensions).
Such extensions are not parts of the Recommendation, and the
extension is a separate piece of software from the
implementation of the Recommendation.  Yet an extension may
need - and typically does have - access to arbitrary
functionalities of the program it extends - including those
covered by an Essential Claim.

Once an Essential Claim is available to extensions to, and
to programs interoperating with, implementations of a
Recommendation, it will effectively be available to
arbitrary other programs, save that it will oblige them to
go through some artificial motions to make themselves
classifiable as implementation of, interoperator with or
extension to the Recommendation.  Introducing the need for
such artefacts benefits no-one, least of all the W3C.

It is clear, further, that many in the Free (as in Liberty)
Software movement will be unable (both in principle and in
practice) to work with your policy unless all techniques
which are necessary to implement W3C Recommendations are
available for use in all software - not just that relating
to W3C Recommendations - on a royalty-free basis.  The
Liberty to re-purpose code - to re-use it in arbitrary other
programs - is an essential part of the Open Source
revolution.  Any Libre implementation of a W3C
Recommendation will include implementations of all Essential
Claims; limiting the royalty-free ambit only to
implementations of W3C Recommendations will collide
disastrously with such re-purposing.

Accommodating the needs of the Free Software movement will
effectively turn the policy into a requirement that
patenters of Essential Claims substantially abandon relevant
patent privileges; however, one may equally read this as
saying that a standard cannot sensibly be called open if it
depends on a technology which is subject to a monopolistic
privilege.  This would appear to be a prima facie truth
which must be accepted by all participants in the
standards-making process.  To this essentially political
argument, I shall add a strictly technical argument, below,
with the same net effect.

> All sections of this document are normative unless specifically
> market non-normative.
typo !)

That said, the policy appears to be a very sensible and
prudent approach to the sensitive and difficult problem of
engaging holders of monopolistic privileges in the
standardisation process, save for one clause which realises
the restriction, implicit in the above goal, to protecting
only implementations of W3C Recommendations - namely ...

Section 3, clause 3:
[a W3C Royalty-Free license ...]
> 3. may be limited to implementations of the Recommendation, and to
>    what is required by the Recommendation;

This may lead to software being forbidden to interoperate
with a Recommendation, unless it is, itself, an
implementation thereof.  It may prevent extensions from
integrating properly with implementations of
Recommendations, in so far as they have an existence
independent of the implementation (e.g. they are separately
distributed).  It might even oblige an implementation to use
one solution to a general problem where the Recommendation
requires exercise of an Essential Claim while yet using a
separate solution to most of the same problem where the
Recommendation does not strictly require the Essential
Claim.  It runs against the W3C's interests for such
restrictions to arise.

Worse, such a limitation may restrict the architectural
choices of those implementing a Recommendation: one would
naturally chose to break up the functionalities involved
therein into a family of libraries, all employed by one
program to implement the Recommendation.  However, no one of
the libraries would constitute an implementation of the
Recommendation: only the main program itself would then be
allowed to contain the code which exercises the Essential

Indeed, where the Recommendation's implementation has, or
may have, several running instances at one time on a
computer, breaking the program up into shared libraries
(a.k.a. DLLs) is the natural way to minimise the host
computer's resource-use; only a `thin application' need
remain as the program of which several copies are run. 
Likewise, if parts of the functionality (of an
implementation of a Recommendation) are only used on some
runs of the program, putting those parts into a shared
library makes it possible for the program to only load the
library when needed - thereby, again, reducing load on the
computer. Again, if several W3C Recommendations require some
common functionality (e.g. URL parsing), it makes sense for
an implementor to write a shared library providing this, to
be used by the implementations of all the relevant W3C
Recommendations - rather than obliging each of these to
include its own, probably with subtly incompatible bugs.  In
like manner, shared libraries provide a natural mechanism
for the development of a W3C standards-compliant core on top
of which application-developers can implement `thin
applications', thus separating out the user interface from
the core and allowing several different user agents to be
built on top of a single engine (c.f. the gecko renderer).

If code implementing an Essential Claim is included in a
shared library, however, it becomes accessible to other
programs - they need only link against the shared library
and exercise its API - even if those programs do not
implement W3C Recommendations.  It will then be a legal
nightmare to decide who is guilty of the patent infringement
- the application author has not written, published or
distributed any code which implements the Essential Claim,
but has merely linked against an API provided as part of the
existing functionality of the target computer system; yet
the implementor of the Recommendation supplied the shared
library, in good faith, as part of the implementation of the
Recommendation.  Clause 3 would thus appear to allow the
patent holder to forbid the implementation of an Essential
Claim in a shared library.

The flip-side of this is that the natural way for an
implementor of a Recommendation to make functionalities
available, to other programs interoperating with the
Recommendation, is to provide those functionalities via
shared libraries.  It is, indeed, desirable that essential
components of implementations of W3C standards (e.g. XML
parsing, HTTP requests, etc.) should be provided in this
form, so as to facilitate the various uses (discussed above)
of shared libraries as common `engine and API' components. 
Clause 3 allows a patent-holder to forbid such sensible
practices: indeed, the objective it tries to achieve
(namely, to ensure that the license not extend to
applications outside the arena of the W3C Recommendation)
implicitly presumes that it will be so used.

The world of computer software is ill suited to such "field
of use" restrictions, since the boundaries are far less
well-defined than is naively supposed in the wording of
clause 3: allowing such restrictions will merely lead to a
legal quagmire from which neither the W3C nor implementors
of its Recommendations will ever escape.  If a patent
restricts the use of a technique essential to the support of
a standard, either the relevant claim of the patent needs to
be substantially waived or, if the patent-holder cannot be
prevailed upon to do so, the standard must be changed;
otherwise, the standard is not meaningfully `open'.

Please remove clause 3 from Section 3 before ratifying this

Your humble and obedient servant,

     Edward Welbourne.
Writing in my capacity as a private netizen; however, I earn
my living as a programmer, in which the web has been pivotal
since 1994, including a period as a server developer for
www.Zeus.com and my present employment as a browser
developer for www.Opera.com.  For more, see

-------- Original Message --------
Subject: Re: DEADLINE New Years: Drop the W3C's "Field of
Use" Patent Policy Clause
Date: Tue, 31 Dec 2002 18:00:53 +0000
From: Ward Vandewege <ward at pong.be>

In addition to doing a Masters in Science and Technology
Policy, I'm a Software Consultant, and I use Free and Open
Software exclusively because that is the only way I can
assure that I can adapt the software I use to the specific
needs of my clients.

I'm very grateful for the tremendous amount of work that has
gone into the Royalty-Free Patent Policy. I really
appreciate how the Patent Policy Working Group has listened
to and acted on the input of the public, and worked with
Bruce Perens, Larry Rosen, Eben Moglen, and others. The
current compromise is laudable, and I realize it may be the
best we can get short of the W3C becoming irrelevant by
being bypassed altogether by corporate interests trying to
establish a 'standard'.    

However, I must admit I am worried about the 'field of use'
clause in the proposal. I'm afraid it will make the
standards the W3C endorses rather irrelevant, as they will
be much less attractive for (grassroots) innovative
purposes. A short example to illustrate this point:

Imagine that the Internet Protocol (IP) was established
under the RF licensing requirements as proposed, and that it
would only be RF when used on the internet. Would we have
seen the proliferation of the IP as we see today? I don't
think so. Proprietary networks that have switched to the IP
would not have done so, e.g. Novell would probably not have
dumped IPX in favour of the IP if there was a royalty fee
involved. Companies selling products that use the IP would
have had to spend much time and effort also supporting
proprietary protocols they would understand less thoroughly
because there would be much less documentation and sample
implementations, and they would be much harder to come by.
This would result in buggy implementations and/or much
higher overhead.  People unaffiliated with (big)
corporations would not have used the IP for the thousands of
innovations that they have come up with since, making the
marketplace even more fragmented.

Essentially, the more open the standard, the higher the
chance it will become widely used and accepted (given that
there are no monopolistic factors that work against it).
This is something the creators of the Internet Protocol
understood well - they decidedly didn't try to foresee how
the protocol would be used, rightly realising they could
never guess all future uses of their innovation. Instead,
they tried to remove as many barriers towards unforeseen
future use as they could, both technically (by making it
totally open and designing a 'stupid' network) and more
relevant for this argument, financially - no royalty fees
whatsoever. The result is the Internet Protocol as we know
it today - omnipresent, unencumbered. Why limit the chances
of open W3C standards to become the most widely used, by
allowing royalties for unforeseen uses?

In the long run, I think this is in the interest of both
(big) industry and more independant developers. The value of
having a pool of standards totally unencumbered by
Intellectual Property Rights, is that much more is available
for innovators to build on. In other words, barriers to
innovation go down. More innovations will be made, directly
resulting in economic growth for everyone involved. If we
choose this road, everyone will benefit. If not, only a few
(large) entities will, and certainly not to a similar
extent. In that case, the world will be a much less
interesting place for people with a passion for


Happy New Year,

Pong.be         -( "Fools ignore complexity.  Pragmatists
suffer it. Some  )-
Virtual hosting -(     can avoid it.  Geniuses remove it."
-- Perlis's     )-
http://pong.be  -(  Programming Proverb #58, SIGPLAN
Notices, Sept.  1982  )-
GnuPG public key: http://gpg.dtype.org

---------- Forwarded message ----------
Date: Mon, 30 Dec 2002 13:49:25 -0500 (EST)
From: Jim Bray <jb at as220.org>
Subject: No 'field of use' patent restrictions

Dear Sirs,

  I have read and agree with the Free Software Foundation's
objection to the 'field of use' patent restrictions
presently allowed in Section 3 of the W3C's proposed patent
policy, as described here:

 Please amend the proposed draft to be fully consistent with
the GPL and Free Software.

With Best Regards,

Jim Bray

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