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   RE: [xml-dev] Patent non-proliferation and disarmament

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It took a while to get back to this one.  

From: Rich Salz [mailto:rsalz@datapower.com]

> 1.  The web would not have emerged without non-royalty 
> based standards.  ... This is undecidable.

>If the inventor of the web says so, then it is decideable.  For example, 
>it is safe to assume he wouldn't have used an sgml-derived markup if it 
>required license fees.

First, decidability has nothing to do with authority or hero worship. 
If that is how one chooses, there are big risks in following ones 
decisions.  The opinions of Tim Berners-Lee don't determine the 
decidability of a problem.  If all you have is historical 
precedents, there are plenty that involve patented technology 
and successful standards.

>> 2.  The open source community health is of vital importance
>> to the success of the web.   ... This is undecidable

>It is safe to say that without free Apache, the web would not have started 
>in the research and academic environment that it did.  Without NCSA 
>Mosaic, MSFT IE would not have had its initial start.

None of those say that the health of one business entity determines 
the health of the web.  

> more, that the economic value of the web was vastly increased 
> by the MS hegemony.

>>Two reactions: first, MS hegemony seems not to be sufficient for web 
>>services to take off. Second, there's more to the web than just economic 
>>value, isn't there?

MS does not have a hegemony there.  There is more to the web than 
economic value but if you expect universal access, you have to 
face up to the reality that open source isn't making that possible. 
Commercial products are.  Universal access is on the shelves of 
Best Buy.

>> In fact, the most productive response 
>> the W3C can make is to show and prove that its technologies can 
>> add value to this process.

>?  As in "we think this will make someone a lot of money, so patents are 
>important" ?

As in put your technology where your mouth is.  If you want to 
assert that something such as the USPTO is broken, fix it instead 
of trying to hide other agendas behind it.

>> If the claimnant cannot be required to exercise 
>> due dilligence, the USPTO is not at fault.

>If you believe this, then your understanding of the US patent system is 
>seriously flawed.  Perhaps enough to render your whole viewpoint suspect.

The USPTO is an examiner.  If Sun couldn't be bothered to do due diligence 
on the prior art that affected X-Pointer even when it was given to them, 
sat on it and decided to play the lawyer game of forcing others to 
take them to court, it is Sun that is behaving badly, not the USPTO. 
If Microsoft didn't want to know that CSS-like stylesheets had been 
around for a long time, the USPTO can't force that.  The USPTO like 
other patenting organizations is broken in the face of accelerating 
developments fueled by feedback integrated through the Internet.  
But we can't throw out the legal system that provides value for 
value because we now have a change in the design environment that 
is cascading into the economic environment.   We have to adapt our 
systems, I agree, but throwing them away to satisfy a flaw in one business 
entity's model is not smart.

> open source standards groups enjoy no special 
> privileges de jure.

>This is wrong; the offer protection from restraint of trade and other 
>monopolistic crimes.  Being an open (as in, anyone can join who meets the 
>published criteria) organization DOES convey benefits.

Those benefits are not special privileges.

>> 9.  RAND will hurt open source developers 
>> Open source developers are not a privileged group.

>Given their historical impact on development of the Internet and the web, 
>and the belief that this will continue, many believe otherwise.

The Raelians believe humans were created by an alien race 25k years ago. 
They will continue to believe this.  I've no problem with that until 
I am required by law to offer it in primary education courses along 
side creationism.

>> o RAND will stifle innovation and reduce choice 
>> This is paranoia.

>You have clearly not worked in a highly-patented field.  I've spent years 
>in public-key infrastructure, and I tell you that you're wrong.

So the MIT patents are of no value to the Kerberos problems?  
Ok, then Microsoft was in the right and the Kerberos implementors 
are just whiners.  Really?

> o  Universal access and RAND are incompatible 
> This is demonstrably false.

>How so?  You're only "rebuttal" to the point that it discriminates against 
>the poor was that it's not illegal to do so.  If the poor cannot 
>participate -- if the developing world cannot afford license fees to 
>implement major protocoks -- then universal access is impossible.

You are attempting to use that to rhetorically put me in the light 
of the Blue Meanie.  Sorry Glove, but the poor have 
more pressing problems than hooking up to the web.  If they live 
in very economically depressed countries, the best approach is to 
get the technology into their schools with grants and other funding 
sources.  There are means to bootstrap and these are of value, 
but the smartest move I've seen was from the Gates Foundation, to 
use technical profits to enrich rice.  Feed them first.  

Universal access and RAND are not inimical.  There is plenty of 
patented technology on that box you are reading this on.  There 
will be more.   What is of use is to have:

1.  Policies that differentiate levels of specifications and patented 
technologies such that specifications that affect every transaction 
are not encumbered.

2.  From these policies, discriminators for interoperation specifications that 
enable companies to license equitably among themselves.

The Open Source Community will have to work out a means to license 
patented technology.  That is an obvious fact.  As long as the 
organizations that use open source profit by it, they bear the 
responsibility to work with licenses where applicable.

Anyway, a lot of this is going to be moot.  It appears that one 
reaction to this intense chasm between the norms of business 
and the open source advocates is that many businesses are 
founding separate organizations to create standards for their 
technologies.   Sensibly, they will work with the other organizations 
such as the W3C, but just as sensibly, they will protect their 
investments, seek to increase marketshare, and yes, increase 
their value for their shareholders.  Policies that can't 
enable that marginalize the organizations that make them.



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