This is the draft Royalty-Free patent policy for W3C.
This draft Royalty-Free patent policy addresses a large number of
issues raised by comments from W3C Members and the general public.
However, there are several significant issues still to be decided by
the Working Group. As such, this draft is still a work in progress. See
the Change Log for a detailed summary of the
unresolved issues and an overview of the changes between this document
and previous versions.
As a public W3C Working Draft, this document may be updated,
replaced, or obsoleted by other documents at any time. It is
inappropriate to use W3C Working Drafts as reference material or to
cite them as other than "work in progress". A list of all W3C technical reports can be found at
http://www.w3.org/TR/.
Before the patent policy is finalized, at least one more public
draft will be released for Last Call review. Following 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.
Public comments on this draft will be instrumental in the Patent
Policy Working Group's deliberations. Please send comments to either
the public comment list <www-patentpolicy-comment@w3.org>
or the W3C Member-only list <w3c-patentpolicy-review@w3.org>.
Both the public
and the Member
(Member-only
link) lists are archived.
This patent policy describes:
- licensing goals for W3C Recommendations
- licensing obligations that Working Group participants will
undertake as a condition of Working Group membership, along with means
of excluding specific patents from those obligations
- the definition of a Royalty-Free license
- disclosure rules for W3C Members
- an exception handling process for situations in which the
Royalty-Free status of a specification comes under question
In order to promote the widest adoption of Web standards, W3C seeks
to issue Recommendations that can be implemented on a Royalty-Free (RF) basis. Under this policy, W3C will
not approve a Recommendation if it is aware that Essential Claims exist which are not
available on Royalty-Free terms.
To this end, RF Working Group charters will include as a requirement
that the specification produced by the Working Group will be
implementable on an RF basis, to the best ability of the Working Group
and the Consortium.
The following obligations apply to all participants in W3C Working
Groups. These obligations will be stated in each Working Group charter
and in standard language that will appear in all calls for
participation (appendixes 1 and 2, to do).
As a condition of participating in a Working Group, each W3C Member
and invited expert agrees to make any Essential Claims it controls available on RF terms, as defined in this policy. With the
exception of the provisions of section 2.2 below, this licensing
commitment is binding on participants for the life of the patents in
question, regardless of changes in participation status or W3C
Membership.
Under the following conditions, Working Group participants may
exclude specific patents from the overall RF licensing commitment:
Specific patents may be excluded from the RF licensing commitment by
a participant who seeks to remain in the Working Group only if that
participant discloses specific patents that will not be licensed on RF
terms within 60 days after the publication of the Working Group's
requirements document. A participant who excludes patents may continue
to participate in the Working Group.
If any claims are made essential by the final Recommendation as a
result of subject matter not present or apparent in the requirements
document, the participant may exclude these new Essential Claims, but
only these claims, by using this exclusion procedure within 60 days
after the publication of the Last Call Working Draft. After this point,
no claims may be excluded. (Note that if material new subject matter is
added after Last Call, then a new Last Call draft will have to be
produced, thereby allowing another exclusion period for 60 days after
that most recent Last Call draft.)
A participant may resign from the Working Group within 60 days after
the publication of the requirements document and be excused from all
licensing commitments.
If a participant leaves the Working Group later than 60 days after
the publication of the requirements document, that participant is only
bound to license claims that are essential based on subject matter
contained either in the requirements document or the latest Working
Draft published before the participant resigned from the Working Group.
Departing participants have 60 days after their actual resignation from
the Working Group to make such exclusions.
Exclusion for participants who join a Working Group more than 60
days after the publication of the requirements document must exclude
Essential Claims covered in the requirements document immediately upon
joining the Working Group.
A Royalty-Free license shall mean a
non-assignable, non-sublicensable license to make, have made, use, have
used, sell, have sold, offer to sell, import, and distribute and
dispose of implementations of the Recommendation that:
1. shall be available to all implementers of the specification
worldwide, whether or not they are W3C Members;
2. shall extend to all Essential Claims
owned or controlled by the licensor and its Affiliates;
3. may be limited to implementations of the Recommendation, and to
what is required by the Recommendation;
4. may be conditioned on a grant of a reciprocal RF license (as
defined in this policy) to all
Essential Claims owned or controlled by the licensee. A reciprocal
license may be required to be available to all, and a reciprocal
license may itself be conditioned on a further reciprocal license from
all.
5. may not be conditioned on payment of royalties, fees or other
consideration;
6. may be suspended with respect to any licensee when licensor is
sued by licensee for infringement of patents used to implement any W3C
Recommendation;
7. may not impose any further conditions or restrictions on the use
of any technology, intellectual property rights, or other restrictions
on behavior of the licensee, but may include reasonable, customary
terms relating to operation or maintenance of the license relationship
such as the following: choice of law and dispute resolution;
8. shall not be considered accepted by an implementer who manifests
an intent not to accept the terms of the Royalty-Free
license as offered by the licensor.
License term:
9. The RF license shall be made available by the licensor as long as
the Recommendation is in effect.
10. If the Recommendation is rescinded by W3C, then no new licenses
need be granted but any licenses granted before the Recommendation was
rescinded shall remain in effect.
11. An interim license shall be made available 60 days after the
publication of the requirements document. This interim license will
expire 60 days after the publication of the Proposed Recommendation, or
90 days after the expiration date of the Working Group charter,
whichever comes first.
Disclosure is required when an Advisory Committee representative (AC
rep), or any other party in a Member organization who received the
disclosure request, has actual knowledge of likely essential claims
with respect to a specification. Anyone in a Member organization who
has such knowledge must inform that AC rep. Where disclosure is
required, the AC rep will do so.
Exemption for those making a Royalty-Free licensing
commitment: Any W3C Member (whether participating in the
Working Group or not) who makes a commitment to license any essential
claims to the Recommendation on a Royalty-Free basis, need not make any
disclosure for that Recommendation.
Disclosure requests, seeking information described in 4.0, will be
included in the "Status of This Document" section of each technical
report as it reaches each new maturity level (requirements document,
Working Draft, Last Call Working Draft, Candidate Recommendation,
Proposed Recommendation, Recommendation).
Disclosure statements must include
- patent number or patent application identification, but need not
mention claims
- the Working Group and/or Recommendation to which it applies
The disclosure statements should be sent to
<patent-issues@w3.org>.
Satisfaction of the disclosure requirement does not require a patent
search, or any additional analysis of the relationship between the
patents that the Member organization holds and the specification in
question.
Disclosure of third-party patents is only required where the
Advisory Committee representative or Working Group participant has been
made aware that the third party patent holder has asserted that its
patent contains claims which would necessarily be infringed in order to
implement the W3C Recommendation, unless such disclosure would breach
non-disclosure obligations.
The disclosure obligation is an ongoing obligation that begins with
the call for participation. Complete disclosure may not be possible
until later in the process, when the design is more complete, however,
so Members are only expected to disclose what is known based on the
current state of the specification. Disclosure as soon as practically
possible is required.
The disclosure obligation terminates when the Recommendation is
published, or when the Working Group terminates.
In the case of laid-open or published applications, the Member's
good faith disclosure obligation extends to unpublished amended and/or
added claims that have been granted by relevant legal authorities and
that the Member believes may contain Essential Claims. To satisfy the
disclosure obligation for such claims, the Member shall either:
- disclose such claims, or
- identify those portions of the W3C specification likely to be
covered by such claims.
4.6. Disclosure Obligations of Invited
Experts
Invited experts participating in a Working Group must comply with
disclosure obligations to the extent of their own personal
knowledge.
Patent disclosure information for each specification on the
Recommendation track will be made public along with each public Working
Draft issued by the Working Group. A complete report on patent
disclosures made with respect to a given specification must be
available to the public as soon as a Candidate Recommendation is
published. If the specification moves directly to Proposed
Recommendation after Last Call Working Draft, then the disclosures are
made public along with the Proposed Recommendation.
In the event a patent has been disclosed that may be essential, but
is not available on RF terms, then a Patent Advisory Group (PAG) will
be launched to resolve the conflict. The PAG is an ad-hoc group
constituted specifically in relation to the Working Group with the
conflict, and will meet in order to help the Consortium find a
resolution to the identified problem and then dissolve. During the time
that the PAG is operating, the Working Group may continue its technical
work within the bounds of its charter.
A PAG may also be convened in the event Essential Claims are
discovered after a Recommendation is issued. A PAG convened in this
manner may advise the Consortium to rescind the Recommendation. Such
advice will be forwarded for Advisory Committee review and Director's
decision. In this case the PAG will be open to any interested Member,
though the PAG may choose to meet without the holder of the Essential
Claims in question.
The PAG is composed of:
- The Advisory Committee representatives of each W3C Member
organization participating in the Working Group (or alternate
designated by the AC rep)
- Working Group Team Contact
- W3C Counsel
- Working Group Chair, ex officio
- Domain Leader responsible for the Working Group
- Other W3C Team members as needed
W3C Member participants in the PAG should be authorized to represent
their organization's views on patent licensing issues. Any participant
in the PAG may also be represented by legal counsel, though this is not
required. Invited experts are not entitled to participate in the PAG,
though the PAG may chose to invite any qualified experts who would be
able to assist the PAG in its determinations.
W3C expects to provide permanent legal staffing to all PAGs in the
form of a Team member who develops experience with the PAG process and
patent issues at W3C.
The PAG will be convened by the Working Group Team contact, based on
a charter developed initially by the Team. The charter should
include:
- clear goals for the PAG, especially a statement of the question(s)
the PAG is to answer;
- duration (maximum 90 days);
- confidentiality status, which must follow the underlying Working
Group (Member only, public, etc.).
The PAG may seek an extension of time from the Director, but must
state a reason for extension and report on progress to date.The PAG,
once convened, may propose changes to its charter as appropriate, to be
accepted based on consensus of the PAG participants. The Team will
choose a member of the PAG to serve as Chair.
After appropriate consultation, the PAG may conclude:
- The initial concern has been resolved, enabling the Working Group
to continue.
- The Working Group should be instructed to consider designing around
the identified claims.
- The Team should seek further information and evaluation, including
but not limited to evaluation of the patents in question or the terms
under which acceptable licensing may be available.
- The specification under development should be produced on RAND
(reasonable and non-discriminatory) terms, either at W3C or some other
body. Note that there is not yet any process for developing or issuing
RAND specifications. Therefore if a PAG makes a recommendation to
proceed on RAND terms, Advisory Committee review and Director's
decision will be required. It is also possible that a PAG could
recommend that the work be taken to another organization.
- The Working Group should be terminated.
- The Recommendation (assuming it has already been issued) should be
rescinded.
In any case, the PAG must state its reasons in a W3C document to
become public with the next public draft of the specification.
To do.
To do.
To do.
To do.
"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, that a Member (or a licensor or licensee,
with reference to entities other than Members) owns, or under which a
Member (or a licensor or licensee) has the right to grant licenses
without obligation of payment or other consideration to an unrelated
third party, that would necessarily be infringed by implementation of
the Recommendation. A claim is necessarily infringed hereunder only
when it is not possible to avoid infringing it because there is no
non-infringing alternative for implementing the required portions of
the Recommendation. Existence of a non-infringing alternative shall be
judged based on the state-of-the-art at the time the specification
becomes a Recommendation.
The following are expressly excluded from and shall not be deemed to
constitute Essential Claims:
- any claims other than as set forth above even if contained in the
same patent as Essential Claims; and
- claims which would be infringed only by:
- portions of an implementation that are not required by the
Recommendation, or
- 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); or
- the implementation of technology developed elsewhere and merely
incorporated by reference in the body of the Recommendation.
- design patents and design registrations.
For purposes of this definition, the Recommendation shall be deemed
to include only architectural and interoperability requirements and
shall not include any implementation examples or any other material
that merely illustrates the requirements of the Recommendation.
The links to Member issues and decisions D4-D18 in the following
paragraph are W3C Member-only.
Member issues: The
document is intended to represent decisions on all matters currently
decided in the Major
Decisions issues list, current through the 19 February 2002 Patent
Policy Working Group teleconference. This document leaves (without
prejudice) the following issues unaddressed:
- D4:
licensing obligations for government participants
- D10:
coverage of optional features in Essential Claims definition and
tightening binding to RFC 2119 terms
- D11:
the results of discussions from the Open Source/Free Software Task
Force regarding open source licensors and field-of-use limitations in
the definition of the RF license. Note that depending on how the
issue is decided, other questions about the license terms may have to
be re-considered.
- D13:
language for the license grant
- D14:
the role of RAND licensing terms in the W3C Process
- D15:
License commitment timing for submitters
- D16:
disclosure and licensing obligations for invited experts
- D17:
Disclosure of unpublished applications
- D18:
Licensing obligation after Recommendation is rescinded
In response to public
comments, the following major changes were made:
- P1,
P5:
RAND track dropped
- P2,
P4:
Strong preference for RF Recommendations
- P1:
The Patent Policy Working Group believes that the RF license as
proposed is compatible with all major Open Source licenses except the
GPL. We are still working on GPL-related issues.
The following major changes to the policy have been made between the
16
August 2001 Last Call draft and the 26 February
2002 Public Working Draft:
- RAND track removed
- 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 infringement in the implementation
of a W3C Recommendation
- earlier exclusion (opt-out) of patents required.
- Differential licensing obligations between "Contributors" and
"non-Contributors" removed.
- Patent Advisory Groups streamlined:
- charters required with specific questions to answer
- time limit on operation of each PAG
- [PROCESS]
- World Wide
Web Consortium Process Document, I. Jacobs, Editor. W3C, 19
July 2001. The latest version of this document is
http://www.w3.org/Consortium/Process.
W3C's evolving patent policy has been informed by help, comments,
criticism, and occasional rants by W3C Members, many voices from the
independent developer and Open Source/Free Software communities, W3C
Advisory Committee representatives, the W3C Team, the W3C Advisory
Board, and participants in the Patent Policy Working Group. Those who
have participated in the beta testing of this policy, leading up to the
W3C Current Patent
Practice document, have made invaluable contributions to shaping a
policy that will actually contribute to achieving W3C's mission.
Every participant in the Patent Policy Working Group has made
substantial contributions to this document. Since its inception, the
following individuals have participated in the group:
Jean-François Abramatic (W3C), Chuck Adams (IBM), Martin Ashton
(Reuters, Ltd.), Carl Cargill (Sun Microsystems), Wanda Cox (Apple
Computer), W. Mike Deese (Microsoft), Mark DeLuca (Woodcock Washburn
LLP for Microsoft), Don Deutsch (Oracle), Tom Frost (AT&T), Michael
Gelblum (Oracle), Mari Georges (ILOG S.A.), Lisa Goldman (Sun
Microsystems), Toon Groenendaal (Philips Electronics), Michele Herman
(Microsoft), Richard J. Holleman (IBM), Ian Jacobs (W3C), Glen Johnson
(Nortel Networks), Jerry Kellenbenz, (Apple Computer), Alan Kotok
(W3C), Gerry Lane (IBM), Arnaud Le Hors (IBM), Susan Lesch (W3C), Steve
Nunn (The Open Group), Scott K. Peterson (Hewlett-Packard), Tony E.
Piotrowski (Philips Electronics), Chuck Powers (Motorola), Barry Rein
(Pennie & Edmonds for W3C), Gib Ritenour (Nortel Networks), Michael
Schallop (Sun Microsystems), Kevin Smith (Nortel Networks), George
Tacticos (IBM), Daniel Weitzner (W3C), George Willingmyre (GTW
Associates), Helene Plotka Workman (Apple Computer). Invited experts
are Eben Moglen (Free Software Foundation), Bruce Perens (Software in
the Public Interest), Larry Rosen (Rosenlaw.com for Open Source
Initiative).