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Claude L (Len) Bullard on Patents and Standards

Date:      Mon, 13 May 2002 14:28:57 -0500
From:      "Bullard, Claude L (Len)" <>
To:        'Robin Cover' <>, 
           XML-DEV Discussion <>
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 
policy issue.

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 
W3C imprimatur.

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.



<offline_exchanges /> 

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, 
is acceptable.

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 
it frosts*?  

Steal from them.  That is what archaic court systems 
enable. :-)  

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."

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