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<html xmlns="http://www.w3.org/1999/xhtml">
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<head>
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<title>Weitzner-W3C DOJ FTC Testimony - Antitrust, Intellectual Property
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and Standards - 18 April 2002</title>
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<meta http-equiv="Content-Type" content="text/html; charset=iso-8859-1" />
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<link href="http://www.w3.org/StyleSheets/base.css" rel="stylesheet"
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type="text/css" />
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</head>
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<body link="#0000ff" vlink="#800080" xml:lang="en" lang="en">
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<p><a href="http://www.w3.org/"><img src="http://www.w3.org/Icons/w3c_home"
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alt="World Wide Web Consortium" /></a></p>
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<h1>Before the United States Department of Justice and United States Federal
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Trade Commission</h1>
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<h2>Joint Hearings on Competition and Intellectual Property Law and Policy in
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the Knowledge-Based Economy: Standards and Intellectual Property: Licensing
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Terms</h2>
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<p><font face="Arial">Testimony of <a
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href="http://www.w3.org/People/Weitzner.html">Daniel J. Weitzner</a> <br />
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<a href="http://www.w3.org/TandS/">Technology and Society</a> Domain
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Leader</font><a href="http://www.w3.org/"><font face="Arial"><br />
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World Wide Web Consortium</font></a></p>
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<p><font face="Arial">18 April 2002<br />
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Washington, DC USA</font></p>
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<h2>Introduction & Overview</h2>
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<p>My name is Daniel J. Weitzner. I want to extend my thanks to the Justice
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Department Antitrust Division and the Federal Trade Commission for holding
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these hearings. I am the head of the World Wide Web Consortium's (W3C)
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Technology and Society activities, responsible for development of technology
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standards that enable the Web to address social, legal, and public policy
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concerns. W3C, an international organization made up of nearly 500 members
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from industry, academe, users organizations and public policy experts, is
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responsible for setting the core technical standards for the World Wide Web.
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W3C was founded in 1994 by Tim Berners-Lee, inventor of the Web, who serves
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as the Director of the Consortium. In addition to my work at W3C, I also hold
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a research appointment at MIT's Laboratory for Computer Science, teach
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Internet public policy at MIT, and am a member of the Internet Corporation
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for Assigned Names and Numbers (ICANN) Protocol Supporting Organization
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Protocol Council.</p>
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<p>W3C has been actively engaged in developing responses to challenges raised
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by patents in the context of Web standards over the last four years, so we
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are particularly pleased to see your agencies' exploration of these matters.
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My goal is to contribute to the factual basis of your inquiry into antitrust,
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intellectual property and technical standards by providing an overview of the
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experience that the World Wide Web community has had with patents over the
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last four years. This testimony will highlight three main points:</p>
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<ul>
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<li>First, the Web itself has been possible only in the context of open,
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royalty-free (RF) standards.</li>
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<li>Second, the "reasonable, non-discriminatory terms" (RAND) licensing
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model common in many traditional standards bodies is unlikely to be
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accepted in the Web environment.</li>
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<li>Third, W3C is working hard to develop a Royalty-Free patent policy that
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encourages the continued evolution of the Web as a universal information
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space, while respecting our Member's legitimate intellectual property
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rights.</li>
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</ul>
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<p>Patent policy considerations for any technical standards effort must be
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grounded in an understanding of the goals of the underlying technology, as
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well as the unique characteristics of the environment in which the standards
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will be used. So I will begin by describing the fundamental technical and
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licensing characteristics of the Web to date.</p>
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<h2>I. General characteristics of the Web: A universal information space</h2>
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<p>The World Wide Web was designed to be an easy-to-use, universally
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accessible open platform for publishing and accessing information, enabling
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linking and distribution of documents amongst computers, regardless of
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operating system, all around the world. While the Web does not yet reach
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every single person in the world, it has enabled an unprecedented exchange of
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knowledge, information, goods and services around the world. Of critical
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importance to the rise of electronic commerce as a new marketplace, Web
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technology allows a wide variety of new systems and technologies to be built
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on top of the basic architecture of the Web, thus enabling continual
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innovation in the design of Web-based applications and services. Two key
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attributes of Web standards are responsible for the ubiquity and flexibility
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of the Web: 1) simple, extensible design, and 2) open, unencumbered
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standards.</p>
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<p>Much has been <a
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href="http://www1.ics.uci.edu/~fielding/pubs/dissertation/rest_arch_style.htm">written</a>
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about the aspects of Web technical architecture which have lead to its
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ubiquity and universality. For the purposes of this discussion, it will
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suffice to note that in contrast to the hypertext systems which existed
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before the Web, the core technology of the World Wide Web is quite simple,
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thus enabling widespread deployment of the Web on a wide variety of hardware
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and software platforms. Earlier hypertext systems (for example, <a
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href="http://xanadu.com/">Xanadu</a>) often had far more sophisticated design
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that anticipated many of the problems (broken links, need for long-term
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archiving, difficulty managing intellectual property rights, etc.), but none
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achieved the wide deployment of the Web. Indeed, the architects of the
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Internet believed that a simple design, based on standards that are
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technically easy to implement, would be a critical part of helping the Web to
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grow to be a truly world-wide phenomenon. Ease of implementation is vital for
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both Web software developers as well as those who simply seek to publish
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information on the Web.</p>
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<p>In the history of the Web, low legal and financial barriers to use of Web
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standards have been as important as ease of deployment from a technical
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perspective. W3C Recommendations are often implemented in a large number of
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individual software environments. Indeed, the Web standards design process
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depends on the implementation experience of a large number of developers to
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assure that each component of the Web is well designed and satisfies the
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needs of the increasing diverse communities of Web users. Gathering early
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implementation experience from a wide range of developers is particularly
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important for security-related standards. This broad experience helps assure
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that security standards are subject to rigorous testing before being
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finalized. Open source implementations have played an essential role in the
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evolution and broad access to Web technology. Among the most popular versions
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of Web server software, <a href="http://www.apache.org/">Apache</a>, is
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produced on an open source licensing basis. In addition to Apache, many of
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our new standards are implemented early with open source code, enabling large
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numbers of developers, commercial and non-commercial, to incorporate new Web
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features into software they are writing without having to develop those
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features from scratch. Finally, the diversity of content represented by the
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over 2 billion Web pages is only possible because the creators of each of
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those pages is able to use key web standards such as HTML (hypertext Markup
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Language) and CSS (style sheets) without paying a royalty.</p>
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<h2>II. History of patents at W3C</h2>
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<p>Web technology has developed over the last decade through an unprecedented
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burst of entrepreneurial energy and global cooperation. Both the
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<em>competitive</em> forces which have lead to innovative technology, and the
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<em>cooperative</em> spirit which has produced global interoperability
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standards at an extremely rapid pace have occurred, until very recently, in a
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market environment without any significant patent licensing requirements.</p>
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<p>The second decade of the Web has already demonstrated that patents will be
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a factor in the ongoing development of the World Wide Web infrastructure. A
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variety of factors suggest that the Web will be increasingly affected by the
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patent process. The following factors are significant:</p>
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<ol>
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<li>Convergence: The Web had its origins in the personal computer software
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industry, where patents had seldom been a factor in development dynamics.
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However, as the Web comes into contact with the telecommunications,
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broadcast media and consumer electronics industries, there is pressure to
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change the traditional role patents have played in Web standards.</li>
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<li>Rise in patent issuance: Patent offices, led by the U.S. PTO, are
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issuing patents, especially in the software sector, at record rates.</li>
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<li>Experience of Internet-related standards bodies: A number of standards
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bodies including W3C and IETF, as well as consortia such as the WAP
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Forum, have encountered potential barriers to acceptance of standards
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because of licensing requirements perceived as onerous.</li>
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<li>Popularity of Business Method patents: Beginning with the <span
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style="text-decoration: underline">State Street</span> decision in the
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United States and continuing through high-profile litigation between
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Amazon.com and Barnesandnoble.com, business method patents have become an
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increasingly significant factor in the ecommerce marketplace.</li>
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</ol>
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<p>All of the core Recommendations issued by W3C to date have been
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implementable on a Royalty-Free basis. In the first four years of W3C's
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history, no serious issues regarding patents had been raised at all. All
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energy was concentrated on developing technical specifications. In the last
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few years several patents issued by the United States Patent and Trademark
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Office have stalled, or at least delayed, W3C technical work.</p>
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<ul>
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<li><strong>P3P and the Intermind Patent</strong> : A patent (US Patent
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#5862325) claiming rights related to metadata control structures between
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clients and servers which, according to Intermind, covered
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implementations of W3C's Platform for Privacy Preferences (<a
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href="http://www.w3.org/TR/P3P">P3P</a>) standard. <a
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href="http://www.intermind.com/">Intermind,</a> at the time a W3C Member
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and participant in the P3P working groups, offered a "licensing program
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that will be compatible with the growth of standards for communications
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object technology," but did not make the precise terms public. Gradually,
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it became clear that the demand that implementers pay royalties was
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chilling the development of the technical specification, and rendering
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deployment of P3P-compliant technologies unlikely. After unsuccessful
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efforts to come to some agreement with the patent holder, another
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approach to removing this barrier was necessary. W3C commissioned an
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analysis of the Intermind patents to assess both the likelihood that
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compliance with P3P would require infringement of the patents and also to
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evaluate the validity of claims. The <a
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href="http://www.w3.org/TR/1999/NOTE-P3P-analysis-19991027">analysis</a>
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conducted by Barry Rein of Pennie & Edmonds, and made available to
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both W3C Members and the public, established a reasonable basis for
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believing that implementers could comply with P3P without infringing the
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patent. Today, P3P is a W3C Recommendation and widely implemented across
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the Web.</li>
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<li><strong>Microsoft Style Sheet Patent</strong>: During the development
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of W3C's style sheet specifications, Microsoft announced that it had been
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issued a patent (US Patent #5860073) which might cover W3C's Cascading
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Style Sheet (CSS) Recommendations. Microsoft was a participant in various
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W3C style sheet activities and quickly offered royalty-free licenses to
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W3C members in order to assure that implementation of this standard would
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proceed.</li>
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<li><strong>Sun XLink Patent</strong> : A patent (US Patent #5659729) on
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technologies relevant to the XLink specification was disclosed by Sun
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during the process of developing the XLink specification. Though there
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was not a clear model for Royalty-Free licensing in W3C, Sun worked to
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develop a license that would enable Royalty-Free implementation of this
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standard.</li>
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</ul>
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<p>After considerable effort on the part of W3C Members and staff, each of
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these situations were, indeed, resolved in a way that enabled widespread
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adoption of the standards in question. However, the general trends cited, and
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the specific situations in which patent claims have been potential or actual
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roadblocks to standardization have made it clear that the W3C must have a
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clear and effective patent policy to ensure that the Web continues to develop
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as an open, universal information platform.</p>
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<h2>III. W3C Patent Policy Development process</h2>
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<p>Responding to increasing concerns about patents, W3C created the Patent
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Policy Working Group (<acronym>PPWG</acronym>) in July 1999 to forge a patent
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policy that will</p>
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<ul>
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<li>address the growing challenge of patent claims around Web
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technologies,</li>
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<li>foster an environment within W3C where technical decisions can be made
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unencumbered by patent claims.</li>
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</ul>
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<p>Whether patents and claims related to W3C technologies are in fact valid
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or not, the risk of costly, time-consuming litigation and possible
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limitations on use by the right holders, is sufficient to suffocate much of
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the dynamic development activity that has been driving the Web industry. A
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variety of factors already discussed suggest that the Web will be
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increasingly affected by the patent process, and so W3C created the Patent
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Policy Working Group to create a clear and effective policy.</p>
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<p>The Patent Policy Working Group's <a
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href="http://www.w3.org/TR/2001/WD-patent-policy-20010816/">first
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proposal</a> suggested a two-track approach to patent policy at W3C, allowing
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both RAND and RF licensing modes. According to the proposal, each time a new
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Working Group is formed to develop a standard, a choice would be made about
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whether the standard should be developed to be implementable on a
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royalty-free or RAND basis.</p>
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<p>Response to that draft was dramatic, both from W3C Members and the public.
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Support from W3C Members was mixed, and reviewers sent all manner of detailed
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comments. Public reaction to the draft was almost uniformly negative,
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primarily because the framework would allow W3C to include in its
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Recommendations technology known to be patent-encumbered, and that
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implementors might therefore have to pay a license fee to implement a W3C
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Recommendation. The strongest reaction came from various communities of open
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source developers who declared, (in several thousand emails sent to the W3C
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public comment mailing list) that a RAND approach would cause open source
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developers to stop using W3C web standards, impel some to form alternate Web
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standards, thus balkanizing the Web, and overall constituted a take-over of
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the Web by large corporate interests.</p>
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<p>W3C responded to input from W3C Members and the public by adding invited
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experts to the Patent Policy Working Group to represent the Open Source
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community, creating a task force within the Patent Policy Working Group to
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examine how to accommodate the Open Source community, and creating a <a
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href="http://www.w3.org/2001/ppwg/">public home page for the PPWG</a>,
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publishing public meeting records, and committing to additional public drafts
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of the framework before the policy was finalized.</p>
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<p>Based on <a
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href="http://lists.w3.org/Archives/Public/www-patentpolicy-comment/2001Nov/0147">input</a>
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from a meeting the W3C Members, the Patent Policy Working Group recently
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issued a <a href="http://www.w3.org/TR/2002/WD-patent-policy-20020226">draft
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royalty free policy</a>. The main features of this policy are:</p>
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<ol>
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<li>RF licensing goals for W3C Recommendations</li>
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<li>RF licensing obligations that Working Group participants will undertake
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as a condition of Working Group membership, along with means of excluding
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specific patents from those obligations</li>
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<li>the definition of a Royalty-Free license</li>
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<li>disclosure rules for W3C Members</li>
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<li>an exception handling process for situations in which the Royalty-Free
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status of a specification comes under question.</li>
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</ol>
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<p>The group developing this policy still have some issues left to resolve,
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but expect to circulate a final proposal for comment by the public and formal
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review by W3C Members in the coming months.</p>
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<h2>IV. Conclusion</h2>
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<p>W3C, it's Members, and many in the independent software developer
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community around the world who have contributed to the growth of the Web,
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have spent the last year in active discussion about the proper relationship
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between patents and Web standards. Our debate is not yet concluded, but we
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have learned together quite a bit about how important the tacit royalty-free
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licensing environment of the Web to-date has been for the development of
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extraordinary economic and social value that has been generated by the World
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Wide Web. Our commitment is to find an approach the insures the Web's growth
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into the future as a vibrant engine of technical innovation, economic
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productivity and social growth. Above all, we will find a solution that
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provides for the continued universality of the Web as an information medium,
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and avoids uses of intellectual property rights that could lead to
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balkanization of the Web. We welcome your consideration of these issues and
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look forward to working with your agencies in future.</p>
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<p></p>
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<hr />
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<p>$Id: doj-ftc-patent-testimony-weitzner.html,v 1.35 2002/04/18 05:10:53
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djweitzner Exp $</p>
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