RE: [xml-dev] Cutting special deals for open source developers --noway!

[Jonathan Robie <jonathan.robie@softwareag.com>]

At 08:53 AM 10/16/2001 -0500, Bullard, Claude L (Len) wrote:
>That is in fact, the climate you do work in.  Patents
>have been applied for and granted.  In general, the
>W3C has been specifying technologies that are for the most
>part based on work done previously in government groups,
>universities etc and some of these are patented.  The MIT
>suits are an example.

Certainly this is true.

This is one of the reasons that the W3C has participants in a WG disclose 
any IPR they have that could constrain implementation of the standard being 
worked on. That only covers people working on the WG, but it does help with 
the worry that someone sitting next to me on the WG is taking careful notes 
and patenting all my ideas as we go along.

While there are always worries about prior art that may be patented, people 
outside the WG that may be patenting similar ideas, etc., these do not make 
it difficult to work openly with other people in the WG, and if I can 
demonstrate that I posted an idea in a WG before someone files for a patent 
based on my idea, that can protect me from having my idea stolen and 
patented. Working together openly in a medium that is archived is important 
for various legal purposes, including both IPR and concerns about collusion.

>None of this is new or remarkable.  Standards
>developers have had to be aware of this situation and
>for that reason, there is a formal policy for such in
>standards bodies.  This is normal.  It is possible
>that your company does have a policy with regards to
>patentable concepts and that you are violating them unaware
>of the potential consequences.  That is something you
>may want to look into.

Trust me, I work for a big company with a good legal staff. I am obligated 
to talk to them about these things, and I am very much aware of that.

>The claims of a norm for freely
>giving away company assets to engender company profits
>is to put it mildly, extraordinary.

Not really. Suppose I were to create the best possible query language for 
XML and patent a bunch of the novel ideas. The resulting language would 
probably not be as good as XQuery, and users would be less likely to want a 
product based on a proprietary language.

Of course, we will have patents related to *efficient* implementation of 
XQuery. The open cooperation is on the definition of the language itself, 
and it must be possible to do a naive implementation without violating any 
patents.

>Web companies
>are becoming aware of this fundamental in which a patent
>portfolio is part of the equation of investment and return
>on investment.  For this reason, despite all claims that
>some norm exists or is being violated, the W3C patent
>policy will move forward and those that need or wish to
>work on W3C specifications will do so under the formal
>norms set by that policy instead of the informal norms
>which they assume exist but in fact may be nothing more
>than a chimera produced by unsound investments the consequences
>of which are now being realized in quite predictable ways.

I agree that formal norms are important. These formal norms should require 
that WG participants agree to make any IPR necessary for implementing a 
standard available. The only part of the RAND policy that I disagree with 
is that I believe that IPR actually needed to implement a standard should 
be available without cost.

Jonathan