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   RE: [xml-dev] Facts to Support RAND? was: Re: [xml-dev] more pate nt fun

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>From: Patrick Durusau [mailto:pdurusau@emory.edu]

>Turner's article turns on conflating the notion of patent rights with 
>creating a an infrastructure via a standards organization that depends 
>upon those patents. In other words, there very well may not be a market 
>for the "invention" covered by the patent unless it does become a basic 
>part of the information infrastructure. 

I read that another way.  There may be organizations or individuals 
who hold valuable patents on technologies which the users or developers 
of the infrastructure want to incorporate.  These organizations or 
individuals will be unwilling to do that without RAND.  They will 
simply sell to the market or license it under terms less reasonable 
and non-discriminatory.  If the W3C attempts to compel them not 
to do that, they will leave the W3C.

>Patent holders are certainly 
>free to not participate in standards organizations but without a 
>"standard,"  they may well find only limited markets for products based 
>on their standards. Having a relatively uniform infrastructure is what 
>makes particular products (or patents) successful.

They can sell these anyway.  See MPEG.

>You may read Turner as saying that the alleged (since they are unnamed 
>or spoken of only in vaguest terms) holders of patents may look for 
>other venues to create a uniform market for their patents, but I doubt 
>that sort of overreaching will be viewed very favorably in most 
>standards organizations. 

They may already have that market.  It is different than the issue 
confronting organizations that dominate content markets in 
transition to XML.  They have to want to open up their schemas. 
Here no patent law protects them and copyrights are seldom 
asserted.  However, surrendering schemas with broad coverage 
enables new competitors to emerge quickly.  Again, the case 
for the innovator vs a basic application is quite different.

>The patent holder faces the choice of actually 
>producing a useful product (the intent of patent law, at least 
>originally) or in some way making that patent a part of the 
>infrastructure so that others need it. 

Actually, no.  They may have purchased a patent or created 
patentable technology for research in a domain in which they 
do not produce the product and others have incorporated it 
into their infrastructure.  In any case, the patent holds if 
they have the wherewithall to pursue it.  It isn't a game 
for small companies, I assure you.

>Assuming that standards 
>organizations become less and less sympathetic, then I suppose patent 
>holders can either sulk and hold onto their patents or they can actually 
>try to compete in the marketplace.

Or they can litigate.  A patent not litigated is worthless in real dollar 
terms because the marketplace steals actively.  Standards organizations 
are a side issue here.

>It would be easier to respond if you could say what those "holes" are. 

I did.  There is no reason to surrender patent rights and licensing 
if it is unprofitable.  You claim it will always be profitable or 
will create market.  I say where that market exists regardless of 
who created it, there are other strategies with better ROI.  So 
it will often come down to willingness.

>And why can't patent holders sell products? I don't recall saying that 
>they could not.

Some do.  Some hold patents in other areas.  Some hold patents in 
areas where their competitors forced them out of business in order 
to get control of those patents or to negate their profitability. 
Say theft.

It is a rough world.  That is a real case.  See Intergraph vs Intel.

>If the product is that interesting, compelling, why not just sell the 

See above.

>>No.  We may not see a decent binary XML because MPEG 
>>encumbered the best idea first.  Perfectly legal.  Good for 
>>all concerned; no, but we can't make them care.

>Think so? Hmmm, I just let that pass as a religious opinion and won't 

Show me a case where force makes someone a good citizen rather than 
merely an obedient one.  You're the Biblical literature guy.

>All I was suggesting was taking care of a goose that is already laying 
>golden eggs. The one Turner is suggests exists is somewhere off in the 
>bushes, if there at all. If that were not the case, Turner and others 
>would be citing real  numbers to make their case.

Microsoft and Turner have repeatedly contributed to that nest.  They 
are good citizens.  They are simply saying that having no RAND option 
is not a good way to induce others to cooperate given a situation in 
which the greatest good for the greatest number is contrary to their 
good.   So the future of the W3C will be best if they are careful 
not to undertake specifications in areas where the dominant stakeholders 
hold patents they are unwilling to surrender.  The W3C could end up 
with wanker specifications while the market created by it is served 
by proprietary technologies.  So be it.



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