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<html xmlns="http://www.w3.org/1999/xhtml" xml:lang="en-US" lang="en-US">
<head>
<title>Patent Policy Working Group Royalty-Free Patent Policy</title>
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<div class="head">
<a href="http://www.w3.org/"><img alt="W3C" height="48" width="72"
src="http://www.w3.org/Icons/w3c_home" /></a>
<h1><a id="title" name="title">Patent Policy Working Group<br />
Royalty-Free Patent Policy</a></h1>
<h2><a id="subtitle" name="subtitle">W3C Working Draft 14 November
2002</a></h2>
<dl>
<dt>This version</dt>
<dd><a
href="http://www.w3.org/TR/2002/WD-patent-policy-20021114">http://www.w3.org/TR/2002/WD-patent-policy-20021114</a></dd>
<dt>Latest version</dt>
<dd><a
href="http://www.w3.org/TR/patent-policy/">http://www.w3.org/TR/patent-policy/</a></dd>
<dt>Previous version:</dt>
<dd><a
href="http://www.w3.org/TR/2002/WD-patent-policy-20020226/">http://www.w3.org/TR/2002/WD-patent-policy-20020226/</a></dd>
<dt>Editor:</dt>
<dd>Daniel J. Weitzner, W3C/MIT, <a
href="mailto:djweitzner@w3.org">djweitzner@w3.org</a></dd>
</dl>
<p class="copyright"><a
href="http://www.w3.org/Consortium/Legal/ipr-notice-20000612#Copyright">Copyright</a>
© 2000-2002 <a href="http://www.w3.org/"><abbr
title="World Wide Web Consortium">W3C</abbr></a><sup>®</sup> (<a
href="http://www.lcs.mit.edu/"><abbr
title="Massachusetts Institute of Technology">MIT</abbr></a>, <a
href="http://www.inria.fr/"><abbr xml:lang="fr" lang="fr"
title="Institut National de Recherche en Informatique et Automatique">INRIA</abbr></a>,
<a href="http://www.keio.ac.jp/">Keio</a>), All Rights Reserved. W3C <a
href="http://www.w3.org/Consortium/Legal/ipr-notice-20000612#Legal_Disclaimer">liability</a>,
<a
href="http://www.w3.org/Consortium/Legal/ipr-notice-20000612#W3C_Trademarks">trademark</a>,
<a
href="http://www.w3.org/Consortium/Legal/copyright-documents-19990405">document
use</a> and <a
href="http://www.w3.org/Consortium/Legal/copyright-software-19980720">software
licensing</a> rules apply.</p>
<hr title="Separator for header" />
</div>
<h2><a id="Abstract" name="Abstract">Abstract</a></h2>
<p>The W3C Royalty-Free Patent Policy governs the handling of patents in the
process of producing Web standards. The goal of this policy is to assure that
Recommendations produced under this policy can be implemented on a
royalty-free basis.</p>
<h2><a id="Status" name="Status">Status of This Document</a></h2>
<p>This section describes the status of this document at the time of its
publication. Other documents may supersede this document. The latest status
of this document series is maintained at the W3C.</p>
<p>This is the W3C <a
href="http://www.w3.org/Consortium/Process-20010719/tr.html#last-call">Last
Call Working Draft</a> of the W3C Royalty-Free Patent Policy for review by
W3C Members and other interested parties. It has been produced by the <a
href="http://www.w3.org/2001/ppwg/">Patent Policy Working Group</a> (PPWG).
The PPWG has <a href="/Consortium/Patent/Group/2002/11/11-minutes">agreed</a>
[Member only link] to release this Last Call draft for Member and community
input. Each issue considered in the formulation of this proposed policy has
been resolved by the Working Group according to the Process Document without
any <a href="http://www.w3.org/2001/ppwg/2002-lc-fo.html">formal
objection</a>, though one participant disagrees with the direction taken by
this policy. As this document has important implications for all Activities
at W3C and the entire Web community, we seek feedback both from W3C Member
organizations as well as interested members of the public. During the Last
Call period, the Patent Policy Working Group plans to discuss harmonization
of terms between the Process Document and the Patent Policy.</p>
<p>The public and W3C Members are invited to send comments on this document
to the <a
href="mailto:www-patentpolicy-comment@w3.org">www-patentpolicy-comment@w3.org</a>
mailing list (<a
href="http://lists.w3.org/Archives/Public/www-patentpolicy-comment/">public
archive</a>). W3C Members may also use <a
href="mailto:w3c-patentpolicy-review@w3.org">w3c-patentpolicy-review@w3.org</a>
(<a
href="http://lists.w3.org/Archives/Member/w3c-patentpolicy-review/">archive</a>
[Member only link]). Comments should be sent during the Last Call review
period, which ends on 31 December 2002.</p>
<p>A <a
href="http://www.w3.org/2001/ppwg/rf-patent-policy-lc-issues.html">list of
open Last Call issues</a> against this document can be found on the W3C Web
site.</p>
<p>There are no patent disclosures relevant to this document.</p>
<p>This is a public W3C Working Draft. <em>It is a draft document and may be
updated, replaced, or obsoleted by other documents at any time. It is
inappropriate to use W3C Working Drafts as reference material or to cite them
as other than "work in progress."</em></p>
<p>A list of all <a
href="http://www.w3.org/Consortium/Process-20010719/tr.html#Reports">W3C
technical reports</a> can be found at <a
href="http://www.w3.org/TR/">http://www.w3.org/TR/</a></p>
<h2><a id="toc" name="toc">Table of Contents</a></h2>
<ul class="toc">
<li class="tocline2"><a href="#Abstract">Abstract</a></li>
<li class="tocline2"><a href="#Status">Status of This Document</a></li>
<li class="tocline2"><a href="#sec-Overview">0. Overview</a></li>
<li class="tocline2"><a href="#sec-Licensing">1. Licensing Goals for W3C
Recommendations</a></li>
<li class="tocline2"><a href="#sec-Obligations">2. Licensing Obligations of
Working Group Participants</a></li>
<li class="tocline2"><a href="#sec-Requirements">3. W3C Royalty-Free (RF)
Licensing Requirements</a></li>
<li class="tocline2"><a href="#sec-Disclosure">4. Disclosure</a></li>
<li class="tocline2"><a href="#sec-Exception">5. Exception Handling</a></li>
<li class="tocline2"><a href="#def-essential">Appendix - Definition of
Essential Claims [Normative]</a></li>
<li><a href="#Addendum">Addendum - Text of RAND Exception Process
Considered and Rejected by the Patent Policy Working Group
[Non-Normative]</a></li>
<li class="tocline2"><a href="#sec-references">References</a></li>
<li class="tocline2"><a href="#sec-acknowledgments">Acknowledgments</a></li>
</ul>
<hr />
<h2><a id="sec-Overview" name="sec-Overview">0. Overview</a></h2>
<p>This patent policy describes:</p>
<ol>
<li>licensing goals for W3C Recommendations</li>
<li>licensing obligations that Working Group participants will undertake as
a condition of Working Group membership, along with means of excluding
specific patents from those obligations</li>
<li>the definition of a W3C Royalty-Free license</li>
<li>disclosure rules for W3C Members</li>
<li>an exception handling process for situations in which the Royalty-Free
status of a specification comes under question</li>
</ol>
<p>All sections of this document are normative unless specifically market
non-normative.</p>
<h2><a id="sec-Licensing" name="sec-Licensing">1. Licensing Goals for W3C
Recommendations</a></h2>
<p>In order to promote the widest adoption of Web standards, W3C seeks to
issue Recommendations that can be implemented on a <a
href="#def-RF">Royalty-Free</a> (RF) basis. Under this policy, W3C will not
approve a Recommendation if it is aware that <a
href="#def-essential">Essential Claims</a> exist which are not available on
Royalty-Free terms.</p>
<p>To this end, Working Group charters will include W3C RF licensing
requirements that specifications produced by the Working Group will be
implementable on an RF basis, to the best ability of the Working Group and
the Consortium.</p>
<h2><a id="sec-Obligations" name="sec-Obligations">2. Licensing Obligations
of Working Group Participants</a></h2>
<p>The following obligations shall apply to all participants in W3C Working
Groups. These obligations will be stated in each Working Group charter and in
standard language that will appear in all Calls for Participation.</p>
<h3><a id="sec-W3C-RF-license" name="sec-W3C-RF-license">2.1. W3C RF
Licensing Requirements for all Working Group Participants</a></h3>
<p>As a condition of participating in a Working Group, each participant (W3C
Members, W3C Team members, invited experts, and members of the public) shall
agree to make any <a href="#def-essential">Essential Claims</a> available
under <a href="#def-RF">W3C RF licensing requirements</a>, as defined in this
policy. With the exception of the provisions of section 2.2 below, W3C RF
licensing requirements are binding on participants for the life of the
patents in question, regardless of changes in participation status or W3C
Membership.</p>
<p>Only the affirmative act of joining a RF Working Group, or agreeing to
other licensing terms, will obligate a Member to the licensing commitments
described here. Mere Membership in W3C alone, without other factors, does not
give rise to the RF licensing obligation.</p>
<h3><a id="sec-exclusion" name="sec-exclusion">2.2 Exclusion from W3C RF
Licensing Requirements</a></h3>
<p>Under the following conditions, Working Group participants may exclude
specific patents from the overall W3C RF licensing requirements:</p>
<h4><a id="sec-exclusion-with" name="sec-exclusion-with">2.2.1. Exclusion
with Continued Participation</a></h4>
<p>Specific patents or published patent applications may be excluded from the
<a href="#sec-W3C-RF-license">W3C RF licensing requirements</a> by a
participant who seeks to remain in the Working Group only if that participant
discloses no later than 60 days after the publication of the Working Group's
requirements document specific patents that will not be licensed on W3C RF
terms. A participant who excludes patents may continue to participate in the
Working Group.</p>
<p>If any claims are made essential by the final Recommendation as a result
of subject matter not present or apparent in the requirements document, the
participant may exclude these new Essential Claims, and only these claims, by
using this exclusion procedure within 60 days after the publication of the
Last Call Working Draft. After that point, no claims may be excluded. (Note
that if material new subject matter is added after Last Call, then a new Last
Call draft will have to be produced, thereby allowing another exclusion
period for 60 days after that most recent Last Call draft.)</p>
<h4><a id="sec-exclusion-resign" name="sec-exclusion-resign">2.2.2. Exclusion
and Resignation from the Working Group</a></h4>
<p>A participant may resign from the Working Group within 60 days after the
publication of the requirements document and be excused from all licensing
commitments arising out of Working Group participation.</p>
<p>If a participant leaves the Working Group later than 60 days after the
publication of the requirements document, that participant is only bound to
license Essential Claims based on subject matter contained either in the
requirements document or the latest Working Draft published before the
participant resigned from the Working Group. In addition, departing
participants have 60 days after their actual resignation to exclude Essential
Claims based on subject matter that is contained in such latest Working Draft
and not present or apparent in the requirements document. (The participant
follows the same procedures specified in this section 2.2 for excluding
claims in issued patents, published applications, and unpublished
applications.)</p>
<h4><a id="sec-join" name="sec-join">2.2.3. Joining an Already Established
Working Group</a></h4>
<p>Participants who join a Working Group more than 60 days after the
publication of the requirements document must exclude Essential Claims
covered in the requirements document immediately upon joining the Working
Group.</p>
<h4><a name="sec-exclude-app" id="sec-exclude-app">2.2.4</a> Exclusion
Procedures for Pending, Unpublished Patent Applications</h4>
<p>Exclusion of Essential Claims in pending, unpublished applications follows
the procedures for exclusion of issued claims in section 2.2.1 and 2.2.2,
except that the final deadline for exclusion of claims under application is
at Last Call plus 60 days for any material, regardless of whether or not it
was contained in the requirements document. Nevertheless, participants have a
good faith obligation to make such exclusions as soon as is practical after
the publication of the requirements document.</p>
<p>Any exclusion of an Essential Claim in an unpublished application must
provide either:</p>
<ol>
<li>the text of the filed application; or</li>
<li>identification of the specific part(s) of the specification whose
implementation makes the excluded claim essential.</li>
</ol>
<p>If option 2 is chosen, the effect of the exclusion will be limited to the
identified part(s) of the specification.</p>
<h3><a id="sec-submissions" name="sec-submissions">2.3 Licensing Commitments
in W3C Submissions</a></h3>
<p>At the time a <a
href="http://www.w3.org/Consortium/Process-20010719/submission.html#Submission">W3C
Submission</a> [<cite><a href="#ref-PROCESS">PROCESS</a></cite>, section 8]
is made, all Submitters and any others who provide copyright licenses
associated with the submitted document must indicate whether or not each
entity (Submitters and other licensors) will offer a license according to the
<a href="#def-RF">W3C RF licensing requirements</a> for any portion of the
Submission that is subsequently incorporated in a W3C Recommendation. The W3C
Team may acknowledge the Submission if the answer to the licensing commitment
is either affirmative or negative, and shall not acknowledge the Submission
if no response is provided.</p>
<h3><a id="sec-invited" name="sec-invited">2.4 Note on Licensing Commitments
for Invited Experts</a></h3>
<p>Invited experts participate in Working Groups in their individual
capacity. Therefore, following the definition of <a
href="#def-essential">Essential Claims</a>, invited experts are only obliged
to license those claims over which they exercise control.</p>
<h2><a id="sec-Requirements" name="sec-Requirements">3. W3C Royalty-Free (RF)
Licensing Requirements</a></h2>
<p>With respect to a Recommendation developed under this policy, a <a
name="def-RF" id="def-RF">W3C Royalty-Free</a> license shall mean a
non-assignable, non-sublicensable license to make, have made, use, sell, have
sold, offer to sell, import, and distribute and dispose of implementations of
the Recommendation that:</p>
<blockquote>
<p>1. shall be available to all worldwide, whether or not they are W3C
Members;</p>
<p>2. shall extend to all <a href="#def-essential">Essential Claims</a>
owned or controlled by the licensor and its affiliates;</p>
<p>3. may be limited to implementations of the Recommendation, and to what
is required by the Recommendation;</p>
<p>4. may be conditioned on a grant of a reciprocal RF license (as defined
in this policy) to all <a href="#def-essential">Essential Claims</a> owned
or controlled by the licensee. A reciprocal license may be required to be
available to all, and a reciprocal license may itself be conditioned on a
further reciprocal license from all.</p>
<p>5. may not be conditioned on payment of royalties, fees or other
consideration;</p>
<p>6. may be suspended with respect to any licensee when licensor is sued
by licensee for infringement of claims essential to implement any W3C
Recommendation;</p>
<p>7. may not impose any further conditions or restrictions on the use of
any technology, intellectual property rights, or other restrictions on
behavior of the licensee, but may include reasonable, customary terms
relating to operation or maintenance of the license relationship such as
the following: choice of law and dispute resolution;</p>
<p>8. shall not be considered accepted by an implementer who manifests an
intent <strong>not</strong> to accept the terms of the W3C Royalty-Free
license as offered by the licensor.</p>
<p>License term:</p>
<p>9. The RF license shall be made available by the licensor as long as the
Recommendation is in effect.</p>
<p>10. If the Recommendation is rescinded by W3C, then no new licenses need
be granted but any licenses granted before the Recommendation was rescinded
shall remain in effect.</p>
<p>11. An interim license shall be made available 60 days after the
publication of the requirements document. This interim license will expire
60 days after the publication of the Proposed Recommendation, or 90 days
after the expiration date of the Working Group charter, whichever comes
first.</p>
</blockquote>
<p>All Working Group participants are encouraged to provide a contact from
which licensing information can be obtained and other relevant licensing
information. Any such information will be made publicly available along with
the patent disclosures for the Working Group in question.</p>
<h2><a id="sec-Disclosure" name="sec-Disclosure">4. Disclosure</a></h2>
<p>Disclosure is required when an Advisory Committee representative (AC rep),
or any other party in a Member organization who received the disclosure
request, has actual knowledge of likely Essential Claims with respect to a
specification. Anyone who received a disclosure request in a Member
organization and who has such knowledge must inform that AC rep. Where
disclosure is required, the AC rep will do so.</p>
<p><strong>Exemption for those making a W3C RF licensing commitment</strong>:
The disclosure obligation as to a particular claim is satisfied if the holder
of the claim has made a commitment to license that claim under <a
href="#def-RF">W3C RF licensing requirements</a>, or has agreed to license
any possibly essential claims it may hold with respect to a Recommendation
under W3C RF licensing requirements.</p>
<h3><a id="sec-disclosure-requests" name="sec-disclosure-requests">4.1.
Disclosure Requests</a></h3>
<p>Disclosure requests will be included in the "Status of This Document"
section of each Recommendation track document as it reaches each new maturity
level (requirements document, Working Draft, Last Call Working Draft,
Candidate Recommendation, Proposed Recommendation, Recommendation). Separate
requests may be issued by the W3C to any party suspected of having knowledge
of Essential Claims. Such disclosure requests will instruct the recipient to
respond through their AC rep (in the case of Members) or a W3C contact (in
the case of non-Members).</p>
<h3><a id="sec-disclosure-contents" name="sec-disclosure-contents">4.2.
Disclosure Contents</a></h3>
<p>Disclosure statements must include:</p>
<ol>
<li>the patent number, but need not mention specific claims</li>
<li>the Working Group and/or Recommendation to which it applies</li>
</ol>
<p>The disclosure statements should be sent to
&lt;patent-disclosure@w3.org&gt;.</p>
<h3><a id="sec-published111" name="sec-published111">4.3. Disclosure of
Laid-Open or Published Applications</a></h3>
<p>In the case of laid-open or published applications, the Member's good
faith disclosure obligation extends to unpublished amended and/or added
claims that have been granted by relevant legal authorities and that the
Member believes may contain Essential Claims. To satisfy the disclosure
obligation for such claims, the Member shall either:</p>
<ol>
<li>disclose such claims, or</li>
<li>identify those portions of the W3C specification likely to be covered
by such claims.</li>
</ol>
<h3><a id="sec-pending" name="sec-pending">4.4 Disclosure of Pending,
Unpublished Applications</a></h3>
<p>W3C Members must disclose the existence of pending unpublished
applications that may have Essential Claims only when claims are being
crafted based on information from a W3C Working Group.</p>
<h3><a id="sec-good-faith11" name="sec-good-faith11">4.5. Good Faith
Disclosure Standards</a></h3>
<p>Satisfaction of the disclosure requirement does not require a patent
search or any additional analysis of the relationship between the patents
that the Member organization holds and the specification in question.</p>
<p>Disclosure of third party patents is only required where the Advisory
Committee representative or Working Group participant has been made aware
that the third party patent holder or applicant has asserted that its patent
contains <a href="#def-essential">Essential Claims</a>, unless such
disclosure would breach a pre-existing non-disclosure obligations.</p>
<h3><a id="sec-disclosure-timing11" name="sec-disclosure-timing11">4.6.
Timing of Disclosure Obligations</a></h3>
<p>The disclosure obligation is an ongoing obligation that begins with the
Call for Participation. Full satisfaction of the disclosure obligation may
not be possible until later in the process when the design is more complete.
In any case, disclosure as soon as practically possible is required.</p>
<p>The disclosure obligation terminates when the Recommendation is published
or when the Working Group terminates.</p>
<h3>4.8. <a id="sec-disclosure-invite11"
name="sec-disclosure-invite11">Disclosure</a> Obligations of Invited
Experts</h3>
<p>Invited experts or members of the public participating in a Working Group
must comply with disclosure obligations to the extent of their own personal
knowledge.</p>
<h3><a id="sec-disclosure-public11" name="sec-disclosure-public11">4.9.
Disclosures to Be Publicly Available on Recommendation Track</a></h3>
<p>Patent disclosure information for each specification on the Recommendation
track will be made public along with each public Working Draft issued by the
Working Group. A complete report on patent disclosures made with respect to a
given specification must be available to the public as soon as a Candidate
Recommendation is published. If the specification moves directly to Proposed
Recommendation after Last Call Working Draft, then the disclosures are made
public along with the Proposed Recommendation.</p>
<h2><a id="sec-Exception" name="sec-Exception">5. Exception Handling</a></h2>
<p>In the event a patent has been disclosed that may be essential, but is not
available under <a href="#def-RF">W3C RF licensing requirements</a>, a Patent
Advisory Group (PAG) will be launched to resolve the conflict. The PAG is an
ad-hoc group constituted specifically in relation to the Working Group with
the conflict. A PAG may also be formed without such a disclosure if a PAG
could help avoid anticipated patent problems. During the time that the PAG is
operating, the Working Group may continue its technical work within the
bounds of its charter.</p>
<p>A PAG may also be convened in the event Essential Claims are discovered
after a Recommendation is issued. In this case the PAG will be open to any
interested Member, though the PAG may choose to meet without the holder of
the Essential Claims in question.</p>
<h3><a id="sec-PAG-composition1" name="sec-PAG-composition1">5.1. PAG
Composition</a></h3>
<p>The PAG is composed of:</p>
<ul>
<li>Advisory Committee representatives of each W3C Member organization
participating in the Working Group (or alternate designated by the AC
rep)</li>
<li>Working Group Team Contact</li>
<li>W3C counsel</li>
<li>Working Group Chair, <em>ex officio</em></li>
<li>Domain Leader responsible for the Working Group</li>
<li>Others suggested by the Working Group Chair and/or the Team with the
approval of the Director</li>
</ul>
<p>W3C Member participants in the PAG should be authorized to represent their
organization's views on patent licensing issues. Any participant in the PAG
may also be represented by legal counsel, though this is not required.
Invited experts are not entitled to participate in the PAG, though the PAG
may chose to invite any qualified experts who would be able to assist the PAG
in its determinations.</p>
<p>W3C expects to provide qualified legal staffing to all PAGs in the form of
a Team member who develops experience with the PAG process and patent issues
at W3C. Legal staff to the PAG will represent the interests of the Consortium
as a whole.</p>
<h3><a id="sec-PAG-procedures1111" name="sec-PAG-procedures1111">5.2 PAG
Procedures</a></h3>
<p>The PAG will be convened by the Working Group Team Contact, based on a
charter developed initially by the Team. The timing for convening the PAG is
at the discretion of the Director, based on consultation with the Chair of
the Working Group. In some cases, convening a PAG before a specific patent
disclosure is made may be useful. In other cases, it may be that the PAG can
better resolve the licensing problems when the specification is at the Last
Call or Candidate Recommendation maturity level.</p>
<p>The charter should include:</p>
<ul>
<li>clear goals for the PAG, especially a statement of the question(s) the
PAG is to answer.</li>
<li>duration.</li>
<li>confidentiality status, which must follow the underlying Working Group
(Member only, public, etc.).</li>
</ul>
<p>The PAG charter must specify deadlines for completion of individual work
items it takes on. The PAG, once convened, may propose changes to its charter
as appropriate, to be accepted based on consensus of the PAG participants.
The Team will choose a member of the PAG to serve as Chair. A single PAG may
exist for the duration of the Working Group with which it is associated if
needed.</p>
<p>In order to obtain input from the interested public at large, as soon as
the PAG is convened, the PAG charter will be made public, along with all of
the patent disclosure and licensing statements applicable to the Working
Group in question.</p>
<h3><a id="sec-PAG-conclusion1" name="sec-PAG-conclusion1">5.3. PAG
Conclusion</a></h3>
<p>After appropriate consultation, the PAG may conclude:</p>
<ol>
<li>The initial concern has been resolved, enabling the Working Group to
continue.</li>
<li>The Working Group should be instructed to consider designing around the
identified claims.</li>
<li>The Team should seek further information and evaluation, including and
not limited to evaluation of the patents in question or the terms under
which acceptable licensing may be available.</li>
<li>The Working Group should be terminated.</li>
<li>The Recommendation (if it has already been issued) should be
rescinded</li>
</ol>
<p>Outcomes 4 or 5 require an Advisory Committee review and Director's
decision. In any case, the PAG must state its proposal and reasons in a
public W3C document.</p>
<hr />
<h2><a name="def-essential" id="def-essential">Appendix - Definition of
Essential Claims [Normative]</a></h2>
<p>"Essential Claims" shall mean all claims in any patent or patent
application with an effective filing date prior to the publication of the
first public Working Draft of the specification and extending until one year
and one day after the publication of the first public Working Draft, in any
jurisdiction in the world, that a Member (or a licensor or licensee, with
reference to entities other than Members) owns, or under which a Member (or a
licensor or licensee) has the right to grant licenses without obligation of
payment or other consideration to an unrelated third party, that would
necessarily be infringed by implementation of the Recommendation. A claim is
necessarily infringed hereunder only when it is not possible to avoid
infringing it because there is no non-infringing alternative for implementing
the normative portions of the Recommendation. Existence of a non-infringing
alternative shall be judged based on the state of the art at the time the
specification becomes a Recommendation.</p>
<p>The following are expressly excluded from and shall not be deemed to
constitute Essential Claims:</p>
<ol class="definitions">
<li>any claims other than as set forth above even if contained in the same
patent as Essential Claims; and</li>
<li>claims which would be infringed only by:
<ul>
<li>portions of an implementation that are not specified in the
normative portions of the Recommendation, or</li>
<li>enabling technologies that may be necessary to make or use any
product or portion thereof that complies with the Recommendation and
are not themselves expressly set forth in the Recommendation (e.g.,
semiconductor manufacturing technology, compiler technology,
object-oriented technology, basic operating system technology, and
the like); or</li>
<li>the implementation of technology developed elsewhere and merely
incorporated by reference in the body of the Recommendation.</li>
</ul>
</li>
<li>design patents and design registrations.</li>
</ol>
<p>For purposes of this definition, the normative portions of the
Recommendation shall be deemed to include only architectural and
interoperability requirements. Optional features in the RFC 2119 [<cite><a
href="#ref-KEYWORDS">KEYWORDS</a></cite>] sense are considered normative
unless they are specifically identified as informative. Implementation
examples or any other material that merely illustrate the requirements of the
Recommendation are informative, rather than normative.</p>
<hr />
<div class="addendum">
<h2><a name="Addendum" id="Addendum">Addendum</a> - Text of RAND Exception
Process Considered and Rejected by the Patent Policy Working Group
[Non-Normative]</h2>
<p>In response to an action item [<cite><a
href="#ref-ACTION">ACTION</a></cite>] from the W3C Advisory Committee, the
Patent Policy Working Group (PPWG) has given extensive consideration to the
question of whether and under what circumstances to allow W3C Recommendations
to be issued where some Essential Claims are only available on RAND
(reasonable and non-discriminatory), not RF, terms. After months of
discussions and several votes, the PPWG concluded that there should not be
any process of including RAND technologies in W3C Recommendations. (The votes
against the RAND exception process were 10-5 on 15 April 2002, 12-7 against
the Core/Extension proposal on 1 October 2002, and 11-7 on 1 October
2002.)</p>
<p>Despite the fact that the PPWG recommends against including this proposal
in the final policy, it is presented in this draft for information purposes
because it illustrates the considerations the PPWG addressed in response to
the Advisory Committee request.</p>
<p><em>The following material from the 20 September 2002 Working Draft
[<cite><a href="#ref-RAND">RAND</a></cite>] would have replaced the text of
<a href="#sec-Exception">Section 5</a> in the current Royalty-Free Patent
Policy Working Draft.</em></p>
<h2><a id="sec-Exception-RAND" name="sec-Exception-RAND">5. Exception
Handling</a></h2>
<p>In the event a patent has been disclosed that may be essential, but is not
available on <a
href="http://www.w3.org/TR/2001/WD-patent-policy-20010816/Overview.html#def-RF">RF</a>
terms, then a Patent Advisory Group (PAG) will be launched to resolve the
conflict. The PAG is an ad-hoc group constituted specifically in relation to
the Working Group with the conflict. A PAG may also be formed without such a
disclosure if the PAG could help avoid anticipated patent problems. During
the time that the PAG is operating, the Working Group may continue its
technical work within the bounds of its charter.</p>
<p>A PAG may also be convened in the event Essential Claims are discovered
after a Recommendation is issued. In this case the PAG will be open to any
interested Member, though the PAG may choose to meet without the holder of
the Essential Claims in question.</p>
<h3><a id="sec-PAG-composition2" name="sec-PAG-composition2">5.1. PAG
Composition</a></h3>
<p>The PAG is composed of:</p>
<ul>
<li>The Advisory Committee representatives of each W3C Member organization
participating in the Working Group (or alternate designated by the AC
rep)</li>
<li>Working Group Team Contact</li>
<li>W3C Counsel</li>
<li>Working Group Chair, <em>ex officio</em></li>
<li>Domain Leader responsible for the Working Group</li>
<li>Others suggested by the WG Chair and/or Team with the approval of the
Director</li>
</ul>
<p>W3C Member participants in the PAG should be authorized to represent their
organization's views on patent licensing issues. Any participant in the PAG
may also be represented by legal counsel, though this is not required.
Invited experts are not entitled to participate in the PAG, though the PAG
may chose to invite any qualified experts who would be able to assist the PAG
in its determinations.</p>
<p>W3C expects to provide qualified legal staffing to all PAGs in the form of
a Team member who develops experience with the PAG process and patent issues
at W3C. Legal staff to the PAG will represent the interests of the Consortium
as a whole.</p>
<h3><a id="sec-PAG-procedures1112" name="sec-PAG-procedures1112">5.2 PAG
Procedures</a></h3>
<p>The PAG will be convened by the Working Group Team contact, based on a
charter developed initially by the Team. The timing for convening the PAG is
at the discretion of the Director, based on consultation with the Chair of
the Working Group. In some cases, convening a PAG before a specific patent
disclosure is made may be useful. In other cases, it may be that the PAG can
better resolve the licensing problems when the specification is at the Last
Call or Candidate Recommendation phase.</p>
<p>The charter should include:</p>
<ul>
<li>clear goals for the PAG, especially a statement of the question(s) the
PAG is to answer;</li>
<li>duration;</li>
<li>confidentiality status, which must follow the underlying Working Group
(Member only, public, etc.).</li>
</ul>
<p>The PAG charter must specify deadlines for completion of individual work
items it takes on. The PAG, once convened, may propose changes to its charter
as appropriate, to be accepted based on consensus of the PAG participants.
The Team will choose a member of the PAG to serve as Chair. A single PAG may
exist for the duration of the working group with which it is associated if it
is needed.</p>
<p>In order to obtain input from the interested public at large, as soon as
the PAG is convened, the PAG charter will be made public, along with all of
the patent disclosure and licensing statements generated by the Working Group
in question.</p>
<h3><a id="sec-PAG-conclusion2" name="sec-PAG-conclusion2">5.3. PAG
Conclusion</a></h3>
<p>After appropriate consultation, the PAG may conclude:</p>
<ol>
<li>The initial concern has been resolved, enabling the Working Group to
continue.</li>
<li>The Working Group should be instructed to consider designing around the
identified claims.</li>
<li>The Team should seek further information and evaluation, including but
not limited to evaluation of the patents in question or the terms under
which acceptable licensing may be available.</li>
<li>The final Recommendation cannot be implemented under the W3C Core
licensing model. If PAG determines that specific features not available
under the W3C Core license are desirable and unavoidable, then the PAG
may propose:
<blockquote>
<p>a) the WG develop a specification with two identified features sets:
a Core feature set, implementable according to W3C Core license
requirements, and an Extension feature set, implementable under the W3C
Extension license requirements. The PAG recommendation will contain a
division of features between the Core &amp; Extension spec. The
procedure and licensing terms outlined in <a
href="http://www.w3.org/Consortium/Patent/Group/Drafts/WD-PPWG-RAND-Exception-20020920.html">W3C
Core/Extension Specification Development Process (Section 5.4)</a>
[Member only link] will be followed.</p>
<p>b) other action is taken to resolve the licensing problem that will
enable the Recommendation to be meet its original goals and the goals
of the Consortium.</p>
</blockquote>
</li>
<li>The Working Group should be terminated.</li>
<li>The Recommendation (assuming it has already been issued) should be
rescinded</li>
</ol>
<p>Outcomes 4, 5, 6 require an Advisory Committee Review and Director's
Decision. In any case, the PAG's must state its proposal and reasons in a
public W3C document.</p>
<h3>5.4 <a name="sec-CoreExt1" id="sec-CoreExt1"></a>W3C Core/Extension
Specification Development Process [This section to be moved to an appendix of
the main policy]</h3>
<p>In the event the PAG agrees that</p>
<ul>
<li>requirements of the specification are not implementable on W3C Core
licensing terms, and</li>
<li>the specification should be divided into Core and Extension
components,</li>
</ul>
<p>then the PAG must assemble a Core/Extension proposal for AC Review. Based
on an Advisory Committee Review of the Core/Extension proposal, the Director
will either re-charter the WG to produce a specification with Core/Extension
components, require that the WG continues in its current mode of operation,
or terminate.</p>
<h4>5.4.1 <a name="sec-CoreExt-Process1"
id="sec-CoreExt-Process1">Core/Extension Process</a></h4>
<p>A Core/Extension Proposal developed by a PAG for AC Review must contain
the following elements:</p>
<ul>
<li>A description of the design requirements for both the Core components
and the Extension components. The core components must enable basic
interoperability in the relevant application space, but might not include
certain advanced or specialized features which are not available under
the <a
href="http://www.w3.org/TR/2001/WD-patent-policy-20010816/Overview.html#def-RF">W3C
RF/Core license</a> but will be available under the <a
href="http://www.w3.org/Consortium/Patent/Group/Drafts/WD-PPWG-RAND-Exception-20020920.html">W3C
Extension licensing</a> [Member only link] terms.</li>
<li>Licensing terms for the Extension component that conform to the <a
href="http://www.w3.org/Consortium/Patent/Group/Drafts/WD-PPWG-RAND-Exception-20020920.html">W3C
Extension Licensing requirements</a> [Member only link]. Such terms must
be specified with enough detail to enable the AC and the public to
comment on them.</li>
<li>Confirmation that all previously made RF licensing commitments have
been expressly reaffirmed or withdrawn</li>
</ul>
<p>The Core/Extension Proposal will be circulated for AC Review as described
in the W3C Process Document. The entire Proposal must be available for public
review, and public comments must be considered during the Director's Decision
on the Proposal.</p>
<p>If the PAG recommendation to continue development through the
Core/Extension is accepted by a Director's Decision, then those Working Group
participants who have already made W3C Core license commitments may withdraw
those commitments. Notice of intent to withdraw such commitments must be
given in time to be included in the Core/Extension Proposal circulated for AC
Review. Otherwise, the original commitments to RF licensing made by Working
Group participants remain in force.</p>
<h4>5.4.2 <a name="sec-Ext-license" id="sec-Ext-license">Extension
Licensing</a> Requirements</h4>
<p>A W3C Extension license shall mean a non-assignable, non-sublicensable
license to make, have made, use, have used, sell, have sold, offer to sell,
import, and distribute and dispose of implementations of the Recommendation
that:</p>
<p>1. shall be available to all worldwide, whether or not they are W3C
Members;</p>
<p>2. shall extend to all <a
href="http://www.w3.org/TR/2001/WD-patent-policy-20010816/Overview.html#def-essential">Essential
Claims</a> owned or controlled by the licensor and its Affiliates;</p>
<p>3. may be limited to implementations of the Recommendation, and to what is
required by the Recommendation;</p>
<p>4. may be conditioned on a grant of a reciprocal license on similar terms
to all <a
href="http://www.w3.org/TR/2001/WD-patent-policy-20010816/#def-essential">Essential
Claims</a> owned or controlled by the licensee. A reciprocal license may be
required to be available to all, and a reciprocal license may itself be
conditioned on a further reciprocal license from all.</p>
<p>5. may be conditioned on payment of reasonable, non-discriminatory
royalties or fees <em>provided</em> that such fees be assessed in such a
manner as to enable a diversity of independent implementations. Such terms
may include:</p>
<ul>
<li>provision of zero-fee licenses for making and using implementations of
the Recommendation,</li>
<li>a credit for each implementer,</li>
<li>other openly specified fee structures that enable widespread
implementation.</li>
</ul>
<p>The specific terms of the Extension license must be established in the
Core/Extension proposal developed by the PAG.</p>
<p>6. may be suspended with respect to any licensee when licensor is sued by
licensee for infringement of claims essential to implement any W3C
Recommendation;</p>
<p>7. may not impose any further conditions or restrictions on the use of any
technology, intellectual property rights, or other restrictions on behavior
of the licensee, but may include reasonable, customary terms relating to
operation or maintenance of the license relationship such as the following:
choice of law and dispute resolution;</p>
<p>License term:</p>
<p>9. The Extension license shall be made available by the licensor as long
as the Recommendation is in effect.</p>
<p>10. If the Recommendation is rescinded by W3C, then no new licenses need
be granted but any licenses granted before the Recommendation was rescinded
shall remain in effect.</p>
<p>11. An interim license shall be made available 60 days after the
publication of the requirements document. This interim license will expire 60
days after the publication of the Proposed Recommendation, or 90 days after
the expiration date of the Working Group charter, whichever comes first.</p>
<h2><a id="sec-acknowledgments-RAND" name="sec-acknowledgments-RAND">RAND
Exception Task Force Acknowledgments</a></h2>
<p>Participants in the RAND Exception Task Force who contributed to this
draft include: Chuck Adams (IBM), Mark DeLuca (Woodcock Washburn LLP for
Microsoft), Michael Gelblum (Oracle), Michele Herman (Microsoft), Gerry Lane
(IBM), Lloyd McIntyre (Xerox), Eben Moglen (FSF), Earl Nied (Intel), Bruce
Perens (SPI), Scott Peterson (HP), Gene Potkay (Avaya), Chuck Powers
(Motorola), Barry Rein (Pennie &amp; Edmonds for W3C), Larry Rosen (OSI),
David Turner (Microsoft), Daniel Weitzner (W3C, Chair), Helene Plotka Workman
(Apple), and Joe Young (Xerox).</p>
<p>The Task Force participants devoted considerable time to this effort, even
though not all agree that a RAND exception was ultimately desirable. As such,
contribution and participation in developing this proposal does not
necessarily reflect support of the proposal by any individual participant.</p>
</div>
<hr />
<h2><a id="sec-references" name="sec-references">References</a></h2>
<dl>
<dt><a id="ref-ACTION" name="ref-ACTION">[ACTION]</a></dt>
<dd><a
href="http://lists.w3.org/Archives/Public/www-patentpolicy-comment/2001Nov/0147">FW:
Action Item from Advisory Committee Discussion on Patent Policy</a>, D.
Weitzner, 21 November 2001. This email message is
http://lists.w3.org/Archives/Public/www-patentpolicy-comment/2001Nov/0147.</dd>
<dt><a id="ref-KEYWORDS" name="ref-KEYWORDS">[KEYWORDS]</a></dt>
<dd><cite><a href="http://www.rfc-editor.org/rfc/rfc2119.txt">Key words
for use in RFCs to Indicate Requirement Levels</a></cite>, S. Bradner.
The Internet Society, March 1997. This <abbr
title="Request for Comments">RFC</abbr> is available by <abbr
title="File Transfer Protocol">FTP</abbr> at
ftp://ftp.rfc-editor.org/in-notes/rfc2119.txt.</dd>
<dt><a id="ref-PROCESS" name="ref-PROCESS">[PROCESS]</a></dt>
<dd><cite><a href="http://www.w3.org/Consortium/Process/">World Wide Web
Consortium Process Document</a></cite>, I. Jacobs, Editor. W3C, 19 July
2001. The latest version of this document is
http://www.w3.org/Consortium/Process.</dd>
<dt><a id="ref-RAND" name="ref-RAND">[RAND]</a></dt>
<dd><cite><a
href="http://www.w3.org/Consortium/Patent/Group/Drafts/WD-PPWG-RAND-Exception-20020920.html">Patent
Policy Working Group Royalty-Free Patent Policy - RAND Exception
process</a></cite> [Member only link], D. Weitzner, Editor. W3C, 2002.
This is an internal draft visible only to W3C Members. The contents of
this draft is included in the <a href="#Addendum">Addendum</a> to the
14 November 2002 Last Call Public Working Draft.</dd>
</dl>
<h2><a id="sec-acknowledgments"
name="sec-acknowledgments">Acknowledgments</a></h2>
<p>W3C's evolving patent policy has been informed by help, comments,
criticism, and occasional rants by W3C Members, many voices from the
independent developer and Open Source/Free Software communities, W3C Advisory
Committee representatives, the W3C Team, the W3C Advisory Board, and
participants in the Patent Policy Working Group. Those who have participated
in the beta testing of this policy, leading up to the <a
href="http://www.w3.org/TR/patent-practice">W3C Current Patent Practice</a>
document, have made invaluable contributions to shaping a policy that will
actually contribute to achieving W3C's mission.</p>
<p>Every participant in the Patent Policy Working Group has made substantial
contributions to this document. Since its inception, the following
individuals have participated in the group:</p>
<p>Jean-François Abramatic (W3C), Chuck Adams (IBM), Angela Anderson
(Nortel), Martin Ashton (Reuters, Ltd.), Carl Cargill (Sun Microsystems),
Wanda Cox (Apple Computer), W. Mike Deese (Microsoft), Mark DeLuca (Woodcock
Washburn LLP for Microsoft), Don Deutsch (Oracle), Tom Frost (AT&amp;T),
Michael Gelblum (Oracle), Mari Georges (ILOG S.A.), Lisa Goldman (Sun
Microsystems), Eduardo Gutentag (Sun Microsystems), Toon Groenendaal (Philips
Electronics), Michele Herman (Microsoft), Richard J. Holleman (IBM), Ian
Jacobs (W3C), Glen Johnson (Nortel Networks), Jerry Kellenbenz (Apple
Computer), George Kerscher (Daisy Consortium), Alan Kotok (W3C), Gerry Lane
(IBM), Arnaud Le Hors (IBM), Susan Lesch (W3C, Team Contact), Bede McCall
(MITRE), Catherine McCarthy (Sun Microsystems), Lloyd McIntyre (Xerox), Earl
Nied (Intel), Steve Nunn (The Open Group), Scott K. Peterson
(Hewlett-Packard), Tony E. Piotrowski (Philips Electronics), Gene Potkay
(Avaya), Chuck Powers (Motorola), Barry Rein (Pennie &amp; Edmonds for W3C),
Gib Ritenour (Nortel Networks), Michael Schallop (Sun Microsystems), Kevin
Smith (Nortel Networks), George Tacticos (IBM), David Turner (Microsoft),
Daniel Weitzner (W3C, Working Group Chair), George Willingmyre (GTW
Associates), Helene Plotka Workman (Apple Computer), Don Wright (Lexmark),
Joe Young (Xerox), and Tom Zell (Xerox). Invited experts are Eben Moglen
(Free Software Foundation), Bruce Perens (Software in the Public Interest),
Larry Rosen (Rosenlaw.com for Open Source Initiative).</p>
<p>Finally, Susan Lesch has done a masterful job on several occasions to help
this inherently complex document read more easily and clearly.</p>
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