W3C Publishes Working Draft for Royalty-Free Patent Policy

We at XML Files, along with most of the Web community have been closely following the emerging W3C Patent Policy. The first document, published by W3C in September proposed a RAND-based Patent Policy. While some in the community supported the development of specifications that require paying "Reasonable and Non-Discriminatory" (RAND) fees, the clear majority of the community responded that W3C Recommendations should be Royalty-Free (RF). When the initial W3C Patent Policy was made public, the response was swift, furious, and highly against the proposed W3C RAND-based policy.

Following this public outcry aganist W3C pursuing a RAND policy, the Patent Policy WG was directed by the W3C Advisory Committee to rework the draft policy. Basin W3C Recommendations on technology that is not encumbered by patents, or whose owners agree to make them freely available on a royalty-free basis appears to have emerged as the favored position.

On January 24, 2002, The World Wide Web Consortium published Current Patent Practice as a W3C Note to serve as a guide for W3C Activities until the policy developed by the Patent Policy Working Group is finalized.

Working Draft favors RF Specifications

On February 26, W3C published a revised Patent Policy Working Draft which is based on strong, explicit commitments to producing Royalty-Free (RF) specifications. To achieve the goal of producing Royalty-Free specifications, the draft requires all who participate in the development of W3C Recommendations to make any essential patents they hold available for free.

The option which would have permitted W3C Members to charge for the use of patented technologies in W3C RAND-based Recommendations has been removed, pending final resolution of the question of what role RAND technologies should play in Web standards.

The new Patent Policy Working Draft differs from the previous draft in three significant ways:

The RAND option for W3C Working Groups has been removed. There is no longer a process for developing RAND specifications.
Working Group Participants must now commit to Royalty-Free Licensing.
Defensive use of patents is allowed only in the case where a holder of essential claims is sued for patent infringement in the implementation of a W3C Recommendation.

RAND is not Dead Yet!

Note that the Working Group has left an open an option for accommodating RAND technologies in exceptional circumstances. Neither the Patent Policy Working Group, nor the W3C Membership as a whole has a final decision about what role, if any, RAND technologies will play in the final policy. Both public and Member comments had a significant impact on the direction of the policy, which puts priority on developing RF specifications. However, many W3C Members feel that there should be a way of dealing with technologies only available on RAND terms within the W3C Process, at least on an exceptional basis. This issue remains a focus of continued discussion.