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267 lines
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267 lines
15 KiB
<?xml version="1.0" encoding="iso-8859-1"?>
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<!DOCTYPE html PUBLIC "-//W3C//DTD XHTML 1.0 Transitional//EN"
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"http://www.w3.org/TR/xhtml1/DTD/xhtml1-transitional.dtd">
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<html xmlns="http://www.w3.org/1999/xhtml" xml:lang="en-US" lang="en-US">
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<head>
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<title>US Patent Office '906 Letter</title>
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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 xml:lang="en" lang="en">
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<p><a href="/"><img src="/Icons/WWW/w3c_home" alt="W3C" width="72"
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height="48" /></a></p>
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<p></p>
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<p>28 October 2003</p>
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<p><span style="text-decoration: underline">By Facsimile & Overnight
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Mail</span><br />
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Hon. James E. Rogan<br />
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Under Secretary of Commerce for Intellectual Property<br />
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Director, United States Patent and Trademark Office<br />
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Suite 906<br />
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Crystal Park 2<br />
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2121 Crystal Drive<br />
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Alexandria, VA 22202</p>
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<p>Dear Under Secretary Rogan,</p>
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<p>As the Director of the World Wide Web Consortium, the global
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standard-setting body for the Web, I write to urge you to consider the impact
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of U.S. Patent No. 5,838,906 ("the '906 patent") on World Wide Web users,
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software developers, and the many commercial and non-commercial organizations
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that depend on the Web every day around the world.</p>
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<p>On October 24 2003, we filed a statement under 35 U.S.C. Section 301
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presenting prior art not considered by the Patent and Trademark Office in
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issuing the '906 patent and explaining why the claims of the patent are
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invalid based upon that prior art. For the reasons given in our statement, we
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urge you to initiate a reexamination of the '906 patent in order to prevent
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substantial economic and technical damage to the operation of World Wide Web.
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As a result of a recent infringement judgment against Microsoft Corporation
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based on the '906 patent, they have stated publicly that they intend to
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redesign the Internet Explorer browser to avoid infringing the '906 patent.
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Although Microsoft's proposed redesign covers only a small portion of its
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entire browser program, it would render millions of Web pages and many
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products of independent software developers incompatible with Microsoft's
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product.</p>
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<p>The impact of the '906 patent reaches far beyond a single vendor and even
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beyond those who could be alleged to infringe the patent. The existence of
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the patent and associated licensing demands compels many developers of Web
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browsers, Web pages, and many other important components of the Web to
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deviate from the fundamental technical standards that enable the Web to
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function as a coherent system. In many cases, those who will be forced to
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incur the cost of modifying Web pages or software applications <strong>do not
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even themselves infringe the patent</strong> (assuming it is even valid).
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Given the interdependence of Web technology, those who wrote Web pages or
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developed software in reliance on Web standards will now have to retrofit
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their systems in order to accommodate deviations from standards forced by the
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'906 patent. These deviations will either reflect individual decisions by
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developers about how to avoid infringement liability, or will be an effort to
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be compatible with decisions individual vendors make in the course of their
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own re-design. What's more, the inevitable fragmentation and re-tooling costs
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caused by the ability to enforce this patent, which we believe to be invalid,
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cannot even be remedied by individual parties choosing simply to pay
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licensing fees to the patent holder. If some parties are granted a license,
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while others either don't or can't obtain one, we will still be left with
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impared functionality of the Web. Global standards have been the basis of
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assuring interoperability on the Web. A patent whose validity is demonstrably
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in doubt ought not be allowed to undo the years of work that have gone into
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building the Web.</p>
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<p>Removing the improperly disruptive effect of this invalid patent is
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important not only for the future of the Web, but also for the past. Even if
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the Web has to endure several years of disruption, we are confident that
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currently active Web pages will eventually be fixed and brought into
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compliance with whatever the prevailing standard is. However, pages that are
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inactive but have historical value may well remain in a state of impaired
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accessibility indefinitely if Web technology is forced to deviate from
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standards in this manner.</p>
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<p>The Web functions <strong>only</strong> on the strength of its common
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standards. The costs of widely divergent implementation of standards is borne
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by all who rely on the Web. The enormous expense and the more general threat
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the '906 patent poses to the Web community is completely unwarranted because
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the '906 patent is, we firmly believe, invalid in view of the prior art
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described in our filing to the Patent Office under the authority of 35 U.S.C.
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Section 301.</p>
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<h2>The World Wide Web Consortium and Global Web Standards</h2>
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<p>W3C -- an international organization made up of over 350 members from
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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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Since the infancy of the Web in 1994, W3C has led the development of Web
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standards and, with these standards, established the basic architecture for
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the World Wide Web. We have produced over 50 technical Recommendations
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ranging from the HyperText Markup Language (HTML) and the Extensible Markup
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Language (XML) to digital signatures, guidelines for Web accessibility, and
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the Platform for Privacy Preferences (P3P). These specifications are
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developed through a collaborative process that brings technical and social
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requirements to working groups of engineers and scientists from around the
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world. I founded W3C in 1994 and serve as the Director of the Consortium.</p>
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<h2>Practical Impact on Web Users</h2>
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<p>The practical impact of withholding unrestricted access to the patented
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technology from use by the Web community will be to substantially impair the
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usability of the Web for hundreds of millions of individuals in the United
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States and around the world. The object embedding technology supposedly
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covered by the '906 patent provides critical flexibility to Web browsers
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giving users seamless access to important features that extend the
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capabilities of Web browsers. Nearly every Web user relies on plug-in
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applications that add services such as streaming audio and video, advanced
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graphics and a variety of special purpose tools. Some examples of popular
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plug-in software that rely on object embedding include:</p>
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<ul>
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<li>multimedia applications that extend the Web from text and simple
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graphics to high quality interactive video and audio: RealAudio and
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RealVideo streaming, Apple QuickTime video, and Macromedia Flash and
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Shockwave players.</li>
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<li>rich document formats: plug-ins such as Adobe's PDF document Reader
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enable the incorporation of sophisticated document formats in standard
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Web pages;</li>
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<li>advanced scripting languages: languages such as Sun Microsystems's Java
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are implemented through plug-in tools that enable a huge variety of Web
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site customizations</li>
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</ul>
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<p>The power of plug-in components on the Web not only gives users the
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benefits of new state-of-the-art services, but also enables continued
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innovation in new technologies that are not yet part of the accepted base of
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Web standards. The ability to embed content to be processed by external
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applications has enabled early testing and adoption of emerging standards
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such as Scalable Vector Graphics (SVG). New standards such as SVG develop
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faster than the rate at which many users actually upgrade their browser
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software. With the ability to plug in new software components, such as SVG
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readers, users can take advantage of new technologies simply by installing
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software plug-ins, as opposed to having to upgrade their entire browser.
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Knowing that this capability is available to users encourages Web page
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designers and those who write software that creates Web pages to use the
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latest new standards with the knowledge that users can simply plug in the
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tools needed to render those new data formats. Without the ability to call
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external code from within a browser window, which is the feature apparently
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claimed in the '906 patent but which was squarely in the prior art, the cycle
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of innovation on the Web would be substantially retarded.</p>
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<p>Changes forced by the '906 patent will also have a <strong>permanent
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impact on millions of Web pages that may have historical importance</strong>
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but are no longer actively maintained by their creators. In many cases these
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pages contain non-commercial content or older material that is not generating
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revenue, hence there is no way to cover the cost of modifying those pages to
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bring them into compliance with whatever changes are made in response to the
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'906 patent. The Web community has traditionally recognized the problem of
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historically-important but dormant pages and has therefore sought to ensure
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'backward compatibility' when developing new technical standards and new
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software. However, in this case, the behavior of those historically important
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pages will be significantly impaired because the changes were forced by the
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'906 patent, without consideration of backward compatibility.</p>
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<h2>Invalidity</h2>
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<p>For as much as the disruptive impact of the '906 patent is clear, there
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are significant questions regarding its validity. The '906 patent is
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generally directed to a Web browser's ability to invoke external programs to
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display portions of a Web page that the browser cannot directly display
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itself. A Web browser may not be capable of displaying certain types of image
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data, in which case the browser would invoke a program that is capable of
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doing so. The sole difference between the Web browser described in the '906
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patent and typical browsers that the patent itself acknowledges as prior art,
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is that, with prior art browsers, the image is displayed in a new window,
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whereas, with the '906 browser, the image is displayed in the same window as
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the rest of the Web page. But that feature (i.e., displaying, or embedding,
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an image generated by an external program in the same window as the rest of a
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Web page) was already described in the prior art publications submitted in
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our section 301 filing.</p>
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<p>The claims of the '906 patent are plainly not patentable given this prior
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art. Moreover, even prior to the development of this feature in Web browsers,
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software developers had recognized the usefulness of adding a similar feature
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to prior art word processing programs, which display documents instead of Web
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pages. For example, more than a year before the claims of the '906 patent was
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filed, a word processing program called Write, provided with Microsoft
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Windows 3.1, enabled users to embed into Write documents graphic images
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created with the Paint program. The Write program would then invoke the Paint
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program to display the illustration within the same window as the rest of the
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document. Thus even without considering the several prior art publications
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annexed to our Section 3.01 filing, it is apparent that the '906 patent added
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nothing to the art -- it only applied a well known concept in the display of
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documents to the display of a particular kind of document -- Web pages. Our
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301 filing provides a more detailed analysis of some of this art.</p>
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<h2>Disruption of Global Web Standards</h2>
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<p>The barriers imposed on the information technology industry by the '906
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patent are of such concern because they cause fragmentation in the basic
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standards that weave the Web together. Denial of access to any particular
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technology is a problem that engineers can successfully address, provided
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they have knowledge of the barrier <strong>before</strong> it becomes part of
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a standard. However, as the '906 patent threatens widely deployed, standard
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technology, the damage is magnified. If the '906 patent remains in force, Web
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page designers and software developers will face a dangerous dilemma. They
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may comply with globally-recognized Web standards resulting in an inadequate
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user experience of their content. Or, they may attempt to design to the
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various work-arounds chosen by different browser developers and face the
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uncertainly of not knowing who will be able to use their content or
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applications properly. W3C's development and the industry's acceptance of a
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single common base of standards for Web infrastructure arose out of a need to
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avoid just this sort of dilemma. The '906 patent is a substantial setback for
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global interoperability and the success of the open Web.</p>
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<p>Recognizing the sensitivity of Web standards to patent licensing demands,
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the W3C has recently enacted a formal patent policy that requires
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specifications suggested for standardization to be implementable on a
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royalty-free basis. The disruption of the Web caused by the '906 patent
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certainly underscores the reasons for W3C's patent policy. In the history of
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the Web, low legal and financial barriers to use of Web standards have been
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as important as ease of deployment from a technical perspective. W3C
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Recommendations are often implemented in a large number of interoperable
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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 increasingly diverse communities of Web users. What's more, the
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diversity of content represented by the over three billion Web pages is only
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possible because the creators of each of those pages is able to use key Web
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standards such as HTML and Cascading Style Sheets (CSS) without paying a
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royalty. While it is not beyond imagination that an existing standard might
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be found to require payment of patent royalties, there is no reason to burden
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the entire Web community based on a patent that is invalid.</p>
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<p>None of these concerns were examined at trial in Chicago. Just as the
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trial court failed to consider the merits of the art we present in our
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Section 301 filing, it also failed to consider the large impact of its ruling
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on the Web. While that case was nominally a bilateral dispute between a
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patent holder and an alleged infringer, it should be clear now that the
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ruling and particularly its failure to consider relevant prior art will
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likely have a highly detrimental impact on the entire Web community unless
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you initiate reexamination of the patent..</p>
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<h2>Conclusion</h2>
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<p>The '906 patent will cause cascades of incompatibility to ripple through
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the Web. I hope that you will take into account the fact that the material we
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have presented in our Section 301 filing bears directly on the validity of
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the '906 patent, that the merits of this prior art were not considered at
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trial, and that allowing the patent holder to control the use of technology
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required for compliance with World Wide Web standards is having a
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substantially disruptive effect on the Web industry and users both in the
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United States and around the world. I would be grateful for the chance to
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meet with you on this matter at your earliest convenience. Please feel free
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to have you or your staff contact Daniel Weitzner, Technology and Society
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Domain Lead at the W3C at <djw@w3.org> or +1 202 364 4750.</p>
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<p>Thank you for your consideration of this important matter.</p>
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<p></p>
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<p>Sincerely,</p>
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<p></p>
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<p>Tim Berners-Lee<br />
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Director, World Wide Web Consortium</p>
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</body>
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</html>
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