Standards, Patents and the Dynamics of Innovation on the Web

Daniel J. Weitzner
MIT Computer Science and Artificial Intelligence Laboratory

Technology & Society Domain Lead
Co-Chair, W3C Patents and Standards Interest Group

Overview

• What we learned about patents and Web standards: unique dynamics of innovation
• How we have responded:
  • policy development
  • W3C Member and public interactions
• Where to from here

Historical Motivation

1993: CERN contributions Web infrastructure to the public domain 1994-1998: Community norms avoids patent licensing issues 1998-1999: Patent holdup of 5 W3C specifications October 1999: Patent policy development begins

What We Have Learned

• The Web and Standards
• Unique sources of innovation
• Unique Industry Structure
• Diversity of Business Models
• In the background: Uneasiness about software patents

The Web and Standards

• Web = Standards
• No new technology, but widespread social agreement yields global value
• document markup => HTML
• hypertext => http
• globally-unique addresses => URIs

Therefore, assuring unrestricted access to use and implementation of standards is vital.

Sources of Innovation: The XML Eleven

Sources of Innovation: Critical Web Infrastructure

Key infrastructure components widely available:

Server
Scripting
Browser

Low barriers to entry as important as technical bells & whistles

Diversity of Business Models

Requirement to find common ground across:

• Computer Industry: hardware & software
• Telecommunications: wireline & mobile
• Consumer Electronics
• Commercial and non-commercial users

"Uneasiness" over software patents

• W3C takes patent law where we find it: no position on software patents
• Many members feel that low standards of obviousness and inadequate examination process create risk
• RF policy is pragmatic, not ideological choice for most Members
• Bookmark: holding patents ends up being important to the operation of the W3C Polic

W3C Response: Patent Policy Favoring Royalty-Free Standards

Goal: Produce Recommendations implementable on Royalty-Free basis and allow technical work to with minimal interruption

Method:

• W3C RF obligations for Working Group participants
• W3C Royalty-Free licensing definition
• Disclosure rules
• Exception Handling: Patent Advisory Group (PAG)

W3C Royalty-Free Licensing Commitment

(Social) Contract Among Specification Designers and Developers:

• ALL Working Group Participants must agree to license Essential Claims they hold on an RF basis
• ONLY Essential Claims - target is interoperability, but patents can still protect competitive advantage
• Exclusions possible early in the development of a specification

W3C Royalty-Free Licensing Requirements

Requirements for a license: (partial list)

1. available to all
2. all Essential Claims 'owned or controlled'
3. field of use limitation allowed
4. reciprocity
5. no fees
6. defensive suspension
7. no other conditions

Disclosure

Policy Requirements

• Must disclose if you have actual knowledge
• WG Participants don't have to disclose UNLESS they seek to exclude a patent from the licensing obligation

Puzzling result given that a key goal of the patent system is to disseminate useful knowledge.

W3C Community Decisionmaking Process

Patent Policy Implementation Experience

W3C Standard Setting Activity (As of November 2006) (live status)

• 109 Specifications, produced by
• 34 Working Groups, based on
• 551 distinct licensing commitments, agreed to by
• 219 different Members

Conclusion

• Other Internet/Web-related standards bodies have followed this direction
• Admission: This is an old talk
• This is private ordering filling the gap left by law
• But, private ordering is a stop-gap
• Time to put size of political table (in US, at least) to our advantage

This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 2.5 License.