W3C

W3C Patent Policy Framework

W3C Working Draft 16 August 2001

This Version:
http://www.w3.org/TR/2001/WD-patent-policy-20010816/
Latest Version:
http://www.w3.org/TR/patent-policy/
Editor:
Daniel J. Weitzner, W3C/MIT, djweitzner@w3.org
Authors:
Michele Herman, Microsoft, micheleh@microsoft.com
Scott Peterson, Hewlett-Packard, scott_k_peterson@hp.com
Tony Piotrowski, Philips, tony.piotrowski@philips.com
Barry Rein, Pennie & Edmonds (for W3C), barry@pennie.com
Daniel Weitzner, W3C/MIT, djweitzner@w3.org
Helene Plotka Workman, Apple Computer, plotka@apple.com

Copyright ©2001 W3C® (MIT, INRIA, Keio), All Rights Reserved. W3C liability, trademark, document use and software licensing rules apply.

Abstract

This framework document outlines a proposal for a new W3C patent policy, including the following components:

This document includes both informative sections on the context of the patent licensing questions faced by W3C, as well as normative sections which propose specific changes to the W3C Process Document and Member Agreements.

Status of This Document 

With this 16 August 2001 Working Draft, the Patent Policy Working Group invites both public and W3C Member comment on this proposed patent policy for the World Wide Web Consortium. The Last Call period closes 30 September 2001.

This proposal has been under development since October 1999 and has received informal comments from members of the W3C Advisory Committee and W3C Advisory Board.

Though this Framework is not a technical specification (rather it proposed changes to the W3C Process Document and Member Agreement) we believe Consortium policy regarding the interaction of patent rights and Web standards is of significant importance to the community-at-large, so we are seeking public comment. This Last Call period will be the only opportunity for public comment. The Patent Policy Working Group will compile a list of all substantive issues raised during this review and provide a response to each. We ask that those who provide feedback make an effort to include specific suggestions on changes to the policy that would address concerns raised.

As we have begun to use portions of the policy in the day-to-day operations of W3C, we plan to skip the Candidate Recommendation and move directly to an Advisory Committee Review of a Proposed Recommendation draft.

The Patent Policy Working Group unanimously agrees that this document should advance to Last Call, however, there are two participants who have raised formal objections to portions of this document:

The Working Group has had extensive discussions about each of these two objections. Though the WG has elected to stand by the position of the draft in its current form, we will consider these objections again in light of other comments received during the Last Call period.

Note on scope: This draft refers to patents in general, without distinguishing between utility patents and design patents. Design patents protect new, original and ornamental designs for an article of manufacture. Whereas utility patents cover functionality, design patents cover ornamentation. We invite comments on whether this policy ought to cover both design and utility patents together or provide separate treatment for each type of patent, including possible exclusion of design patents.

To assist readers of this document, the Working Group has begun a FAQ. As we receive comments about this document, we will update the FAQ accordingly.

The planned schedule the Patent Policy Framework is as follows.

Patent Policy Review Schedule
Date Review Document
16 August - 30 September 2001 Public review of Patent Policy Framework Last Call draft 16 August 2001 WD
10 December 2001 - 18 January 2002 W3C Proposed Recommendation delivered for Advisory Committee Review
February 2002 Final policy published

Public comments should be directed to the Patent Policy review mailing list, <www-patentpolicy-comment@w3.org>, publicly archived at http://lists.w3.org/Archives/Public/www-patentpolicy-comment/. W3C Member may also send comments to, <w3c-patentpolicy-review@w3.org>, archived in a W3C Member-accessible space at http://lists.w3.org/Archives/Member/w3c-patentpolicy-review/.

This is a W3C Working Draft for review by W3C Members and other interested parties. It is a draft document and may be updated, replaced or made obsolete 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". This is work in progress and does not imply endorsement by the W3C membership.

A list of current W3C Recommendations and other technical documents, including Working Drafts and Notes, can be found at http://www.w3.org/TR/.

Table of Contents

1. Overview

This section is informative.

The sine qua non of the Web revolution is the open standards environment on which the Web is built and continues to grow. The Web's open technical standards have developed through the open, collaborative process created by the World Wide Web Consortium. As Web technology has become more commercially critical and the impact of software and business process patents are felt more strongly in the Web development arena, W3C believes it is necessary to adopt a more comprehensive policy and process for addressing the relationship between the open technical Recommendations developed by W3C and patent rights held by both W3C Members and others.

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. At the same time, many Members invest significant research effort in the development of their own intellectual property portfolios, so are concerned about protecting and benefiting from proprietary technology they have developed or acquired.

In developing a new patent policy for W3C Activities, our goal is to affirm the Web community's longstanding preference for Recommendations that can be implemented on a royalty-free (RF) basis. Where that is not possible, the new policy will provide a framework to assure maximum possible openness based on reasonable, non-discriminatory (RAND) licensing terms.

2. Background: Patents, Standards, Interoperability and Innovation on the Web

This section is informative.

Web technology has developed over the last decade through an unprecedented burst of entrepreneurial energy and global cooperation. Both the competitive forces which have lead to innovative technology, and the cooperative spirit which has produced global interoperability standards at an extremely rapid pace have occurred, until very recently, in a market environment without any significant intellectual property licensing requirements. In contrast to other network industries such as telecommunications or transportation, innovation has occurred without recourse to patent rights to protect investment in research and development.

2.1 Larger Role of Patents on the Web Landscape

The second decade of the Web has already demonstrated that patents will be a factor in the ongoing development of the World Wide Web infrastructure. A variety of factors suggest that the Web will be increasingly affected by the patent process. The Patent Policy Working Group (PPWG) has identified the following significant factors:

  1. Convergence: The Web had its origins in the personal computer software industry, where patents had seldom been a factor in development dynamics. However, as the Web comes into contact with the telecommunications, broadcast media and consumer electronics industries, the tradition of patenting technology from those industries will likely be carried over to the Web.
  2. Rise in patent issuance: Patent offices, led by the U.S. PTO, are issuing patents, especially in the software sector, at record rates.
  3. Experience of Internet-related standards bodies: A number of standards bodies including W3C, IETF, the WAP Forum, and others, have encountered potential barriers to acceptance of standards because of licensing requirements perceived as onerous.
  4. Popularity of business method patents: Beginning with the State Street decision in the United States and continuing through high-profile litigation between Amazon.com and Barnesandnoble.com, business method patents have become increasingly significant factor in the ecommerce marketplace.

These factors make it clear that the W3C must have a clear and effective policy to address the inevitable increase in patent issues that will come before individual Working Groups and the Membership as a whole.

2.2 Working Group Response: Points of Consensus and Areas for Further Work

Assessments of the impact of patents in the dynamics of the development of the Web and the operation of W3C vary, as do the prescriptions for change in W3C process. Some view a larger role for patents in the W3C standards-setting process as the inevitable, and certainly not fatal, sign that the industry is maturing. Just as the telecommunications and consumer electronics industries have flourished through standards based on patented, royalty-bearing technologies, so too will the Web, according to this view. Others view the rise of patents in the Web standards landscape with concern. Market dynamics that have lead to rapid innovation, worldwide proliferation of standards, and a high degree of entrepreneurial development may be threatened by barriers posed by even reasonable licensing terms. In this view, the highly decentralized Web industry structure is so unlike the industries in which patents play a large role, that the reliance on licensing models from those industries is considered inappropriate.

Even with differing points of view on the likely impact of patents on Web standards, the PPWG has reached some consensus recommendations.

Consensus Points:

3. Summary: Changes to the Process Document and Member Agreements

This section is normative.

In order to bring a higher level of certainty to patent licensing terms surrounding technology essential to implement W3C Recommendations, the following steps are to be added to the W3C Process Document [PROCESS] and Member Agreements [AGREEMENTS]. Sections 4 through 8 articulate the changes summarized here:

  1. Specifying patent licensing requirements in charters: Working Group charters will include patent licensing mode declaration, along with technical requirements that already exist in charters. A Working Group licensing mode expresses the licensing terms (RAND or RF) under which a Recommendation should be able to be implemented. The licensing mode will become the basis for decisions about advancing the specifications through the W3C standardization process, just as are technical requirements. Section 5 describes licensing modes.
  2. Disclosure obligations: All W3C Members are obliged to disclose any patent claims they know of that may be essential to implementing a Recommendation. Those Members whose contributions become the basis for Working Group efforts have an obligation to disclose relevant patent claims and licensing conditions at the time of their submission. Further, all W3C Members are obliged to disclose the existence of laid-open or published patent applications they know of that they believe may be essential to implementing the Recommendation. Section 7 describes disclosure obligations.
  3. Commitment to RAND licensing terms: All W3C Members make a legally-binding commitment to license patent claims essential for implementing a W3C Recommendation on RAND terms. Any W3C Member not willing to license particular technology on RAND terms must opt-out specific patent claims they hold, normally within 60 days after the publication of the Last Call Working Draft. Members who make formal contributions to a Working Group specification agree, further, to offer licenses to essential patent rights according to the licensing mode established in the Working Group charter, unless specifically opting out at the time the contribution is made. Section 8 describes Member commitments.

4. Definitions

This section is normative.

(a) Essential Claims

"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:

  1. any claims other than as set forth above even if contained in the same patent as Essential Claims; and
  2. 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.

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.

(b) Member

"Member" shall mean a Member of the World Wide Web Consortium, also referred to as the "Consortium" or "W3C." "Member," "licensor" and "licensee" shall, unless the context indicates otherwise, include all entities controlled by, in control of, or in common control with, the named Member, licensor or licensee. Control means the right to exercise more than half of the voting rights or other indicia of control of the entity.

(c) Contribution

"Contribution" is either:

  1. an acknowledged Submission to W3C, as defined by the W3C Process Document section 8 [PROCESS] which is submitted to a Working Group for incorporation into a specification being developed by the Working Group; or
  2. any written or electronic document submitted to a Working Group for the purpose of incorporation into a W3C specification which, at the judgment of the Working Group Chair, requires a patent disclosure. An acknowledged Submission submitted before a Working Group seeks to incorporate it as a Contribution may become a Contribution when:
    • the Working Group Chair requests of the Advisory Committee representatives of the Submitting organizations that the Submission be considered a Contribution
    • the Advisory Committee representatives of all submitting Members agree to designate the Submission as a Contribution and have provided the required patent disclosure and licensing information.
  3. an acknowledged Submission which was NOT originally submitted to a Working Group for incorporation into a specification being developed by the Working Group when
    • the Working Group Chair requests of the Advisory Committee representatives of the Submitting organizations that the Submission be considered a Contribution
    • the Advisory Committee representatives of all submitting Members agree to designate the Submission as a Contribution and have provided the required patent disclosure and licensing information.

Obligations arising out of Contribution are binding on all Members participating in a Member Submission request.

(d) Licensing mode

"Licensing mode" shall mean the licensing terms, royalty-free (RF) or reasonable and non-discriminatory (RAND) terms, set as a requirement in a particular Working Group charter.

(e) RAND License

RAND stands for "reasonable and non-discriminatory" terms. A "RAND License" shall mean a license that:

  1. shall be available to all implementers worldwide, whether or not they are W3C Members;
  2. shall extend to all Essential Claims owned or controlled by the licensor and its Affiliates (except as described in section 8.2 concerning licenses relating to Contributions);
  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 RAND License to all Essential Claims owned or controlled by the licensee and its Affiliates. For example, 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 (including, in the case of a license to a Contribution, the original licensee).
  5. may be conditioned on payment of reasonable, non-discriminatory royalties or fees;
  6. 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: audit (when relevant to fees), choice of law, and dispute resolution.
(f) Royalty-Free License

A "Royalty-Free License" also called "RF License" shall have the same characteristics as a RAND License, except that a Royalty-Free License:

  1. may not be conditioned on payment of royalties, fees or other consideration except for the conditions permitted in the clauses of RAND License other than clause 5.
  2. may require that all licensees make any Essential Claims they control available to all on a no-royalty basis.
  3. 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.
(g) Affiliate

An "Affiliate" of a first entity is a second entity that is controlled (greater than 50%) by, in control of, or under common control with the first entity.

5. Patent Licensing Mode in Working Groups and Requirements Documents

This section is normative.

All Working Groups will be constituted by charter with either a royalty-free (RF) or reasonable, non-discriminatory terms (RAND) licensing mode. The goal of licensing modes is to set expectations among Working Group participants, and establish clear guidelines for decisions regarding advancing the document through the Recommendation track. Licensing modes will guide the Working Group process much as technical requirements, such as scope, that are already in place. Working Groups will be expected to produce a final Recommendation that can be implemented in accordance with the licensing mode specified. These requirements cannot prevent cases in which patent claims held by non-W3C Members, or by W3C Members who chose to opt-out (see section 8.1 and section 8.2) of the licensing requirement, from interfering with the established licensing expectations of the Consortium.

5.1 Licensing Mode Decision-Making Process

The licensing mode under which a Working Group operates is defined in the Working Group's charter. As a part of the charter, the licensing mode will be set in the normal process of developing an Activity proposal and its associated Working Group charters. Activity proposals and/or draft charters proposing licensing modes must state clear reasons for selection of the licensing mode proposed. Members commenting on these proposals during the Advisory Committee review process should state reasons for their views on the appropriate licensing mode given the specifics of the Activity, relevant market, along with any other factors. This decision-making process is illustrated below and in the W3C Process Document section 2.2 [PROCESS].

Working Group participants will be obligated to abide, in good faith, with the patent licensing mode of the Working Group and make appropriate disclosures as early as possible.

Working Group Licensing Mode Decision Making Process:

  1. Activity proposal with proposed charters developed with proposed licensing mode specified (selected from 5.2)
  2. Activity proposal circulated to Advisory Committee for comment per usual process
  3. Advisory Committee representatives comment on entire package, including licensing mode
  4. Director's decision:

5.2 Licensing Mode Options Menu

The following two licensing mode choices are available for Working Groups:

  1. Reasonable, non-discriminatory terms (RAND)
  2. Royalty-free (RF)

The licensing terms associated with each choice are defined in section 4 of this document.

5.3 Procedure for Changing Licensing Mode of an Existing Working Group

Changes to a Working Group patent licensing mode can only be made by formally terminating the existing charter of the Working Group and re-chartering the group with Advisory Committee comment and approval of the Director. The decision to consider a change in Working Group licensing mode may only be initiated by a Patent Advisory Group, as described in section 6. While Working Group charters can generally be changed on the authority of the Director alone, where a Working Group charter change entails a change in licensing mode, the charters must be submitted for Advisory Committee review.

When a Working Group is terminated and restarted in this manner, all Working Group members will have to be re-nominated through a new call for participation as described in the W3C Process Document section 4.2.3 [PROCESS]. The patent disclosure and licensing process will start from the beginning. When a Working Group is re-chartered with a changed licensing mode, licensing commitments made by Working Group members under the older charter are void.

6. Ad Hoc Patent Advisory Group (PAG) Procedure

This section is normative.

When a Working Group becomes aware that it may have incorporated technology in its specification that is contrary to the licensing mode defined in the Working Group charter, it must launch an ad hoc Patent Advisory Group (PAG). A PAG must be launched in the event Essential Claims become known which are not licensable according to the licensing mode of the Working Group.

The purpose of the PAG is to seek to resolve the variance from the Working Group licensing mode.

6.1 PAG Membership

The PAG is composed of:

W3C Member participants in the PAG should be authorized to represent their organizations 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.

6.2 PAG Procedures

The PAG will be convened by the Working Group Team contact, based on a charter developed initially by the Team. The charter should include:

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.

6.3 PAG Outcomes

After appropriate consultation, the PAG may conclude either:

  1. the initial licensing conflict has been resolved in order to be able to produce a specification that meets the licensing mode set out in the Working Group charter; or
  2. the conflict cannot be resolved so the Working Group should be terminated and, at the suggestion of the PAG, re-chartered.

In either case, the PAG must state its reasons in a W3C Member-accessible document. The PAG is not constituted to assess or to develop legal opinions as to validity, infringement, or essentiality of patents at issue. Statements issued by the PAG should carry disclaimers to this effect. The PAG may, however, recommend that action be taken by W3C to address specific legal issues identified by the PAG.

7. Disclosure Obligations

This section is normative.

W3C Members agree to use good faith efforts to disclose all patents known to them which may contain Essential Claims. Disclosure obligations stated here cover:

  1. W3C Members: whether or not they are part of a given Working Group
  2. Working Group participants: individuals, whether or not they are in good standing, who have joined a Working Group, and their alternates
  3. Working Group contributors: Working Group members who make formal contributions to a Working Group

7.1 The Patent Disclosure Requirements

Every Member shall make a good faith effort to identify patents which may contain Essential Claims. Members shall also disclose the existence of laid-open or published patent applications that they believe, if issued, would likely contain Essential Claims. Disclosures must include:

  1. patent number or patent application identification, but need not mention claims
  2. the Working Group and/or Recommendation to which it applies

Members making disclosures need not provide the licensing terms on which the Essential Claims would be available, except in the case of Contributions. However, Working Group participants are entitled to seek information about license terms associated with any disclosed Essential Claims.

7.2 Good Faith Disclosure Standards

An Advisory Committee representative is expected to circulate requests for patent disclosure through the same channels as any other W3C material (such as the W3C NewsWire, Newsletter, and W3C specifications) is distributed within the Member organization. Disclosure obligations shall not obligate a Member to conduct a search of its patent portfolio. No extraordinary effort is required for patent disclosure requests, nor should such requests be given lower priority than other communication efforts undertaken by the Advisory Committee representative. Recipients of such material are expected to respond, if at all, based on their actual, personal knowledge of their organizations patent holdings and applications. No implied knowledge should be imputed. At the same time, if individuals take advantage of information from W3C Working Groups in formulation of patent strategy, they should make appropriate disclosures in response to requests through circulated by the Advisory Committee representative.

Disclosure of third-party patents is only required where the Member has been made aware that the third party patent holder has claimed its patent contains claims that would necessarily be infringed in order to implement the W3C Recommendation, unless such disclosure would breach non-disclosure obligations.

7.3 Timing of Disclosure Obligations

W3C Advisory Committee representatives will receive requests to disclose known patents at the following points in the process:

The disclosure obligation is an on-going 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 disclosure what is known based on the current state of the specification. Disclosure as soon as practically possible is required.

7.4 Disclosure of Laid-Open or Published Applications

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:

  1. disclose such claims, or
  2. identify those portions of the W3C specification likely to be covered by such claims.

The disclosure obligation, which is based upon the personal knowledge of the Working Group participant, terminates when the specification is published, or when the Working Group charter ends.

7.5 Additional Disclosure Obligations for Members Who Make Formal Contributions Used by a Working Group

Members who make Contributions used by a Working Group must disclose any patents containing Essential Claims reading on the Contribution. Such disclosure must be made either with the Submission request itself, or at the time that the Working Group asks that a particular technology proposal is designated as a Contribution by the Working Group Chair. When the Chair of a Working Group determines that a particular technical contribution made by a Working Group participant is of sufficient importance, and the relevant AC Representative(s) agree to designate such material as a Contribution, then the contributing Working Group member will, through his or her Advisory Committee representative, make relevant patent disclosures applicable to the Contribution (per section 7) and clear statement of the terms on which Essential Claims will be available (RAND, RF, or other). Any Working Group member may ask for an item to be given "Contribution" status. The Chair has the final decision.

If the Contributor expects to add licensing requirements beyond those specified by the charter, then the licensing terms must be disclosed at the time the Contribution is made. If a Contribution fails to include such disclosure, then any claims held by that Member that are Essential Claims with respect to that part of the Contribution later included in the resulting Recommendation, will be deemed to be offered according to the licensing mode of the Working Group, either RAND or RF.

7.6 Disclosure Obligations of Invited Experts

Invited experts participating in a Working Group must comply with disclosure and licensing obligations to the extent of their own personal knowledge.

7.7 Disclosures to Be Publicly Available on Recommendation Track

Patent disclosure information for each specification on Recommendation track will be made public along with each public Working Draft issued by the Working Group. Along with these disclosures, the licensing mode of the Working Group should be publicly stated. 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.

8. Member Patent Licensing Commitments

This section is normative.

This section details the licensing obligations undertaken by each W3C Member.

As a condition of Membership in W3C, each Member agrees to license all Essential Claims needed to implement W3C Recommendations on RAND terms (per section 4(e)), unless the Member has disclosed specific patents believed to include Essential Claims and has declared that these Essential Claims are not available on RAND terms (per section 8.1). Members whose Contributions form a significant technical basis of a Recommendation are obligated to offer patent rights essential to implement that part of the contribution included in the Recommendation according to the licensing mode of the Working Group, unless the contributor specifically excludes those Essential Claims at the time the Contribution is accepted by the Working Group. Essential Claims held by the contributor must be licensed according to the licensing mode of the Working Group regardless of when those claims were issued.

Invited Experts to a Working Group must agree to license all Essential Claims under their control needed to implement W3C Recommendation(s) produced by that Working Group on reasonable, non-discriminatory terms, unless the Invited Expert has disclosed specific patents believed to include Essential Claims and has declared that these Essential Claims are not available on RAND terms (per section 8.1).

8.1 Obligations of a Member as to Essential Claims Not Related to Contributions

All Essential Claims of a Member with respect to a Recommendation shall be deemed offered for license under a RAND License, unless the Member has, within 60 days after the publication of the Last Call Working Draft, 'opt-ed out' those specific claims by disclosing, per section 7, the Essential Claims and licensing terms, and stating that those Essential Claims will not be available for license under RAND terms.

If changes are made to the specification after the publication of the Last Call Working Draft and those changes result in additional claims being considered Essential Claims, then the deadline to 'opt-out' from the RAND licensing obligation for those claims is extended to 60 days after the publication of the document which caused the change.

8.2 Obligations of a Member as to Essential Claims Related to Contributions

A Member offering a Contribution to a Recommendation shall, as a condition of acceptance by the Working Group, agree to offer licenses to all Essential Claims relating to its Contribution in conformance with the licensing mode set in the Working Group charter unless the Member expressly indicates their intention not to conform with the licensing mode of the Working Group in accordance with the Member's obligation to do so as set forth in section 7.

The license offered by a Member in connection with a Contribution may include the requirement that each licensee license back all Essential Claims of the licensee relating not just to the Contribution but to the Recommendation in its entirety. Implementers may decline the terms offered by the Contributor and, as in all cases, have the option of negotiating a license for the Essential Claims held by the Contributor on different terms.

8.3 Term

Patent licensing commitments made by a Member with respect to a Recommendation shall be binding on the Member in perpetuity, regardless of the Member's future relationship with the W3C, unless the proposed Recommendation has failed to become a Recommendation within two years after the final Last Call Working Draft. Participants who leave the Working Group any time before a Recommendation is published remain bound by any licensing commitments made during their participation. This shall not apply to a commitment in connection with a Contribution if the Contribution is not used in the Recommendation, in which case the Member's obligation shall terminate.

If a Recommendation is later rescinded by W3C, the following license obligations shall apply:

Licenses shall be deemed to begin one day after the RAND opt-out period ends for a given Recommendation.

9. Policy Implementation

This section is informative.

Implementing the proposals outlined in this framework require modifications to several key W3C governing documents. Documents which must be modified include:

In addition to these changes, the policies put forward in this document may be require changes in:

Once the framework outlined here is approved, the Patent Policy Working Group will draft amendments to basic W3C documents.

10. References

This section is normative.

[AGREEMENTS]
Full Member Agreement, W3C MIT/INRIA/Keio, 1995-2000. The latest version is available at http://www.w3.org/Consortium/Agreement/Full.
Affiliate Member Agreement, W3C MIT/INRIA/Keio, 1995-2000. The latest version is available at http://www.w3.org/Consortium/Agreement/Affiliate.
[PROCESS]
World Wide Web Consortium Process Document, I. Jacobs, Editor. W3C, 8 February 2001. The latest version of this document is http://www.w3.org/Consortium/Process.

11. Acknowledgements

This section is informative.

The participants of the Patent Policy Working Group who wrote this document were: 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 Kurtz Mackiewicz & Norris LLP for Microsoft), Mari GEORGES (ILOG S.A.), Toon Groenendaal (Philips Electronics), Michele Herman (Microsoft), Ian Jacobs (W3C), Glen Johnson (Nortel Networks), Alan Kotok (W3C), Steve Nunn (The Open Group), Scott K. Peterson (Hewlett-Packard), Tony E. Piotrowski (Philips Electronics), Barry Rein (Pennie & Edmonds for W3C), Gib Ritenour (Nortel Networks), Daniel Weitzner (W3C), and Helene Plotka Workman (Apple Computer).

Thanks are due to members of several Patent Advisory Groups (Synchronized Multimedia (SMIL 2.0), Voice Browser, and SVG 1.0) who acted as early beta-testers of parts of this policy. Their willingness to take on the challenge of implementing a policy while it was still under development has added invaluable practical experience in the workings of this policy even before it is finalized.

Finally, we are grateful to Susan Lesch, W3C Technical Editor, who provided immeasurable help in making this complex document much more readable than it would have been. She is not, however, responsible for the inherently difficult twists and turns of some of the patent licensing language.

Appendix 1 - Overview of Changes to Existing W3C Recommendation Track

This section is informative.

The following table highlights the changes proposed from the perspective of the existing W3C Process. A flow diagram of the proposed patent process is also available

Process Changes Proposed by draft Patent Policy
Process Stage Changes proposed by draft Patent Policy New General Member Obligations New Working Group Member Obligations
Activity proposal with charter(s) Draft charters include proposed patent licensing mode. Advisory Committee representatives comment on proposed licensing mode. n/a
Call for participation in a Working Group Revised patent disclosure questions will replace IPR section of Call for Review/Participation none none
Submission to W3C Submissions must include complete patent disclosures and proposed licensing terms. Determine relevant disclosures to be made and licensing commitment as part of preparing Submission. Determine relevant disclosures to be made and licensing commitment as part of preparing Submission intended for the Working Group.
Working Drafts none none none
Last Call Working Draft Opt-out of RAND licensing obligation within 60 days after Last Call Working Draft published. All W3C Members who do not want to make essential technology available on RAND terms must indicate which patents they plan to withhold within 60 days after the publication of the Last Call Working Draft. All Working Group members who do not want to make essential technology available on RAND terms must indicate which patents they plan to withhold within 60 days after the publication of the Last Call Working Draft.
Candidate Recommendation, Proposed Recommendation, Recommendation Specifications may not advance unless they have met the licensing mode specified in the Working Group charter. n/a n/a

Appendix 2 - Flow Chart of Patent Process

This section is informative.

In this figure, existing processes are shown, along with new processes added by the patent policy.

patent process overlaying the W3C Recommendation track

Figure 1