RE: [xml-dev] WWW /= W3C: Has W3C mission changed?

["Bullard, Claude L (Len)" <clbullar@ingr.com>]

It isn't incorrect.  It can vary by case.  An IPR owner 
unaware of the WG activity may only be made aware as 
the activity becomes public.  Thus the patent policy 
will only be effective for the "members" who comply.  The XPointer 
patent stands and without the policy, Sun quite effectively 
kept it in play even in the face of prior art.  
This case is prior to the draft policy being formulated 
but even with the existing policies, the patent did not 
stop XPointer.  So the first year law student never got 
up to bat.  In effect, the W3C already has a RAND standard.  

The concern over submarine patents is evident 
in the texts.  Diminished strength is relevant to cost of 
pursuing it.

A limit on the terms of the license would be a standard 
part of it but license provisions can vary by case and 
have come to the fore of some very large suits with 
peculiar assertions about ownership (duration) made.  
So the first year law student will not get 
to bat.  Anyone familiar with patent cases knows they 
never do.  It is a very expensive form of litigation 
and the rules and expense change across venues as some 
states offer for example, more favorable scheduling.  
Costs play a substantial role in this whole picture.

The loosey goosey language troubles me too as I noted 
earlier.   It seems to be centered around the will of 
the Chair of the WG as much as the member commitment. 
The responsibilities of the W3C are unclear and given 
that, I'd likely not only not want to use their standard 
or technology, I'd not want to be the chair either.

As it stands, the RAND options are dangerous to exercise 
without substantial legal oversight and support.  I do wonder who is 
going to pony up to that.  Will, for example, the W3C 
retain a staff to review and comment on all WG charters 
and submissions to ensure RAND is being correctly followed?

len

-----Original Message-----
From: Jonathan Borden [mailto:jborden@mediaone.net]

Len,

> ...The
> XPointer situation illustrates that and how it can be taken
> completely out of their hands using a submarine patent, even
> one that in the face of prior art, is left standing given
> the lack of will or resources to overturn it.  Such patents
> may have favorable terms offered, but a patent can be reassigned,
> sold, etc. and the new owner not bound by these terms.

That is incorrect for several reasons.

First, "submarine" patents have _significantly_ diminished strength. An IPR
holder has an active responsability to enforce its IPR. Failure to inform
and enforce means that while you may hold a patent, you loose the future
right to seek damages from infringements of the patent. This is patent 101.
Ask any first year law student.

Second, a license is a license is a license. Neither party can change the
terms of a contract after the fact _unless_ the contract grants such rights
(e.g. "you may freely use this software today, but as of midnight all bets
are off"). Mere selling of IPR does not invalidate any contract made which
licenses the IPR. This is contract 101. Ask any first year law student.

The language which concerns me _most_ is the loosey goosey non-requirement
to disclose one's IPR. When an entity signs the contract to become a W3C
member, and such contract contains language requiring the entity to disclose
IPR, failure to do so may become evidence in court when such an entity tries
to sue for patent infringement. As such a strong IPR disclosure policy would
give me some assurance that I might safely implement or use a technology
recommended by the W3C. A loose IPR disclosure policy, on the other hand,
would make me avoid technologies recommended by the W3C.