Claude L (Len) Bullard on Patents and Standards
Date: Mon, 13 May 2002 14:28:57 -0500
From: "Bullard, Claude L (Len)" <email@example.com>
To: 'Robin Cover' <firstname.lastname@example.org>,
XML-DEV Discussion <email@example.com>
Subject: RE: Patent non-proliferation and disarmament
Since Robin and I are exchanging mail offline,
I thought this may be of value to any who have
interest in the thread.
I believe patents are allowable in standards
and specifications where the scope of licensing
is not punitive. There are viable cases for
this such as the MPEG patent pool, PDF, etc.
where the licensing is reasonable and to an
able customer. Where vendors license to other
able vendors, research costs can be shared in
an effective way.
Licensing terms, not patents per se, are the issue.
We have to fix the patent systems in our countries,
but that is simply evolution. Licensing is a
A license on a core transaction type that levies a
fee for each and every transaction (the most
absurd case I can conceive) is clearly on the
other extreme. It can't be collected fairly
so will warp the system of payment and make
criminals out of the unwitting. Today, it may
be the case that the currently published policy
is the only reasonable one if the W3C is indeed
helpless in the face of the inefficient patent
systems of the nation states and the predatory
behaviors of its own members. This is a shoddy
situation and one hopes that with effort, we
can do a better job given the power of these
precedents and their potential to weaken the
In a sense, this comes down to reasonable
business rules. I would consider the following
to be strategies worth considering:
1. The technology of the Internet and the
WWW should be leveraged to its full potential
to enable effective evaluation of patent submissions.
The governments of all nations should overhaul
their patent systems after careful consideration
of the issues emerging as the result of global
communications in the context of a global
economy. It must be understood that in these
global systems, their practices are exposed.
(The Whole World Is Watching.) Failure to
disclose or to fully evaluate prior art
can be quickly discovered.
2. The business rules that emerge from this
must be negotiated and shared at international
levels of protocol and engagement. The vendor
consortia are inadequate for this task and
should not be made the focus of the negotiation
although they are a primary resource for understanding
the technologies leading to the convergence of interests.
If the W3C cannot affect the patenting organizations of
the global communities, the community governments
must. If the W3C can aid in that effort, this
is mutually beneficial.
3. The rhetoric of privilege, whether of the
wealthy corporation, of the empowered individual,
or the open community of engaged interests,
is not the dominant topic. The principle of
property rights extends to all or none; thus,
it must be held sacrosanct. However, this does
not empower any entity to use this right to deny
to others the rights of access to public information
or public resources. Eminent domain exists as a
means. Otherwise, theft de jure will be rampant.
A wise man understands the effect of his decisions
on the whole and then on himself. This is the essence of dharma (duty).
Yet all of these are simply wise policy. They
cannot account for the outlaw allele that masks
as a reasonable member. For this, only diligence
and redress exist and these may be inefficient.
We will not have perfect information for all
decisions and we will make mistakes. That is the
cost of civilization but it is not to great to bear
for the benefits.
A powerful sense of interdependency must come to all
if we are to survive these engagements. A jewel held in a
vault only has value to the owner that can mortgage
that value. We must be cognizant about the
classes of value which are held by many or few
and the kinds of transactions of which these
values can be members. Our policies must
encode these classes of value. Our personal sense
of duty enlightened by our continuous engagement
must be nurtured. This we cannot achieve if
the engagement is "us vs them". In this
mode, our memories will reflect only our
personal desires, and not a true memory of
events, recent or long past. So we cannot
enable either our personal memory or
the technology which supports our collective
memory to be despoiled. The world we live
in is too fragile for this atavism to carry
forward into the next generation.
Len: Idealism and duty are not mutually exclusive.
However, a society that imposes duty rather
than creating a path to enable the individual
to come to duty by self-realization is simply
another raj. Sometimes rule by the raj is
necessary; sometimes, it is punitive. That
we cannot in all cases, have perfect information,
means we must have choices for both the
individual and the raj. It is important,
in my opinion, that the choices of the
individual and the raj be related such
that the good of the individual not be
to the detriment of the raj and the good
of the raj not to the detriment of the individual.
The American solution to that is encapsulated
in the abstraction, "of the people, by the
people, for the people". Our government is
scoped by these and while it may not always
be perfectly executed, it is the ideal that
shapes our laws.
Our problem is that we cannot get information
to the raj (in this case, the USPTO) such
that the control of issuing the patent is based
on reliable information. That is why I believe
the policy, in and of itself, fine, has to be
tuned to enable options given reliable information.
So, a reasonable patent can be considered on
reasonable terms. A raj (such as a large vendor)
will then understand that if the patent terms
would impose unreasonable conditions (say, a transaction
fee on any and all transactions), they will be
rejected regardless of the innate technical
value. On the other hand, terms which are
not unreasonable and impose a cost for licensing
which only a few and able have to bear (say,
a Microsoft pays for a license), should be
acceptable if by accepting this, the technology
then is made available to the "people" under
reasonable conditions. Thus a patent on something
such as VoiceXML, paid for by the licensing vendor,
What I wish to avoid are the overarching arguments
that come down to us vs them, or "kill MS" or
"kill ISO" etc. Those aren't good for us.
The principles of duty I believe in are those
that create the greatest good for the greatest
number. That is as good as logic gets, then
yes, we are into faith. I am like you, one
who has faith in the principles of openness,
but am aware that any principle pushed to an
extreme, can be a source of misery.
[Robin: Why should something intended to be developed as
owned/proprietary become standardized?]
Len: Only because it is:
o The best solution where quality counts (mission-critical)
o The only solution. (mission critical, they did innovate
it, we are pleading cases for good behavior)
Otherwise, the standard is defective itself. If acceptable
alternatives exist, it is better to use one. The risk is
time to market and colonization. One will be debating
"what is best" or "daring to do less".
A licensed standard on reasonable terms to me means the
costs passed to the customer through the vendor are shared
by so many as to become almost insignificant. The [person]
that can't afford that probably has higher priorities
anyway (like access to food and shelter). "The poor
ye shall have always" and I think the response there
is waiving costs for the indigent. There are civilized
responses that don't abuse the rights of the many for
the one or the few.
Now what to do with the *total asshole who couldn't
care less and will get the royalty no matter who
Steal from them. That is what archaic court systems
Duty is a personal perception based on a relationship
of act and reward to the individual in the context of
their membership in society or to their God.
It is not enforced by society. Duty means the right act,
not that the act is right. The law is not divine;
it is a system based on principles. The abstraction
of "the people" scared everyone except for James Madison
who arduously argued that systems based on the
divine right of kings had failed just as had any based
on the complete absence of centralized control. The
abstraction of the people enabled both a centralized
form of government and a feedback built into it based
the perceptions of individuals who in aggregate
composed the will of the nation. Control of choice
of choices is shared where control of some choices is not.
What is the lesson of the Sun patent? Not their behavior,
but the results. It may have killed XPointer. If so,
they championed a technology that they also torpoedoed.
We don't need to make a law; they need to see the results
of the action. Then duty follows from right understanding.
If insisting on a license means that the standard itself
will not be used, the value of the patent to the standard
goes to zero. That means, don't submit or submit with
reasonable terms. Reasonable terms are usually RF, but
might be RAND for a reasonably endowed set of customers.
Hoodwinking the world takes more "innovation" than many
are, I hope, capable of.
Prepared by Robin Cover for The XML Cover Pages archive. See "Patents and Open Standards."