Claude L (Len) Bullard on Patents and Standards
Date: Mon, 13 May 2002 14:28:57 -0500
From: "Bullard, Claude L (Len)" <clbullar@ingr.com>
To: 'Robin Cover' <robin@isogen.com>,
XML-DEV Discussion <xml-dev@lists.xml.org>
Subject: RE: Patent non-proliferation and disarmamentSince 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. BUT: 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 ********************************************** <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."
