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Patent Wars: The W3C Strikes Back

Patent Wars: The W3C Strikes Back

October 17, 2001

In last week's XML Deviant column I summarized some of the important events and policy positions surrounding the W3C's Patent Policy Working Group's (PPWG) proposal, as well as the XML and free software community's reaction to the RAND provisions.

This week I will consider how the W3C is responding to the massive show of opposition to RAND -- at last count the W3C had received more than 2,000 public comments -- as well as provide an update of the XML development community's ongoing conversation about patents, intellectual property, rights, and the nature and history of the Web.

The W3C's Response

There are some reasons to think that the system, at least at this relatively early date, is working. The W3C has certainly been taking notice of the public opposition expressed to RAND policies. And, whether cynical or not, the PPWG has taken a significant and welcome step by altering its institutional makeup. Until very recently, the PPWG was composed almost exclusively of corporate vendor representatives. Now, as a result of public opposition, the W3C has, in its own words, "opened its patent policy process for continuing public dialog" (W3C Patent Policy Comment mailing list). That means, in part, inviting Eben Moglen, general counsel of the Free Software Foundation, and Bruce Perens, HP's open source point person, to join the PPWG as "invited experts". In fact, the PPWG has been meeting this week, and both Perens and Moglen have already joined those meetings in some degree.

The PPWG has further committed to producing a second public Last Call version of its "W3C Patent Policy Framework" policy document. This is also welcome news, since it assures the various interested communities that the participation and input of Moglen and Perens, as well as the substantive comments and criticisms contained in more than 2,000 public comments, will have some opportunity to matter to the final form of the W3C's patent policy.

While it may be too soon to celebrate the demise of a RAND patent policy, it seems that the basic soundness of the system -- which means, in this instance, the W3C's formal commitment to some degree of public responsiveness -- has been reaffirmed. As with all its recommendations, the W3C asked for public comment about a proposed policy, and the public responded massively, even if very near the last minute. So far the W3C has taken the appropriate minimal steps to take account of the public's response. The inclusion of Perens and Moglen does not insure any particular outcome, but it should reassure the free software and open source communities, if not others, that their interests and concerns will be represented in the W3C's ongoing debate about its patent policy.

Patents, Innovation, and Openness

As I wrote last week, one of the clear points of consensus in the XML development community's debate about RAND was the threat RAND posed to free software and the future of the Web. Given the widespread XML community perception of that threat, I thought it would be worthwhile to get some idea of how members of the W3C's technical staff viewed the importance of the kinds of (relatively) unfettered technical collaboration that open source fosters. "You will find, in general," Tim Berners-Lee, W3C Director, said, "very strong support for open source among the W3C staff. People tend to work at W3C because (among other things) they like the freedom of constraint of a particular corporate employer."

"The success of the Web," Dan Brickley said, "came in large part from the open source and free software community; open standards and open source are stronger when they work together. They naturally complement each other." Brickley works on RDF and Semantic Web infrastructure for the W3C, which is some of the most cutting-edge Web work anyone is doing these days. He added that the recent developments with regard to patent policy "also, albeit in a roundabout manner, got a lot of people thinking about the relationship between the free, open source software and the need for open standards on the Web. We heard from thousands of people who value W3C's specifications".

Dan Connolly, who works at the W3C with the Semantic Web and was for a long time the XML Activity Lead, had a similarly positive response about the relation between W3C and open source development. "I frankly can hardly afford," he said, "to pay attention to anything but open source development". He offered two reasons: first, "I can't really use anything else in my own work, because if I did, I couldn't guarantee that all the W3C membership could benefit from that work". Second, "the marketing hype around stuff that's not open source is so thick that I can't afford the time it takes to get the actual technical details". These are important points to remember during patent policy debates. In this case, at least, there's some indication that open source fuels innovation by removing some of the friction that would otherwise exist.

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According to Connolly, patent encumbrances make development more difficult. For example, Connolly "wanted to invite some developers to come and chat with us, but there were patent issues that just weren't worth the time and hassle to deal with". "Patents are certainly an impediment to 'technical innovation' in the sense of new ubiquitous technology," he said, "they may have their place in a technology that's deployable by one particular company alone".

Both Dan Brickley and Dan Connolly expressed satisfaction that Bruce Perens and Eben Moglen are willing and able to join the PPWG as invited experts.

Berners-Lee said that the most innovative periods of the Web's history were composed of open source development. "The Web's critical growth period involved only what we now call 'open source' software," Berners-Lee said. "In fact one of the challenges early on was to get industry interested," he added, "because there was a community which would not take it seriously unless they could get software from a company." Berners-Lee made a distinction, however, between parts of the Web that are relatively stable and parts that are still undergoing rapid, innovative development. "The Semantic Web is again similar: academic and independent enthusiasm, open source sofware, and industry is reluctant to commit until they understand it more."

Berners-Lee's views about the impediment to innovation that patents impose are well-known. In his Weaving the Web, he writes, "I mention patents in passing, but in fact they are a great stumbling block for Web development. Developers are stalling their efforts in a given direction when they hear rumors that some company may have a patent that may involve the technology" (Weaving the Web, Chapter 13).

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