The W3C Patent Policy Working Group has released a new working draft document Patent Policy Working Group Royalty-Free Patent Policy, superseding the W3C Patent Policy Framework. The WD Royalty-Free patent policy "addresses a large number of issues raised by comments from W3C Members and the general public." One of the significant changes in the new WD (since the 16-August-2001 Last Call draft) relates to the W3C's position on RAND. Under the terms of the previous document, a preference was confirmed for W3C Recommendations that can be implemented on a royalty-free (RF) basis, but allowing, where RF is not possible, "a framework to assure maximum possible openness based on reasonable, non-discriminatory (RAND) licensing terms." In response to public comments, the RAND track has now been dropped. Comments have expressed concern that RAND-encumbered specifications would not be implemented and that RAND would lead to discrimination and fragmentation (e.g., RAND would hurt open source developers, would discriminate against the poor, would stifle innovation and reduce choice, would harm end users as well as developers, universal access and RAND are incompatible; patents and standards are incompatible, etc.). A number of issues remain to be resolved in the W3C patent policy.

From the W3C announcement: "The new Patent Policy Working Draft differs from the previous draft in three significant ways:

• The RAND track for W3C Working Groups has been removed. There is no process in this policy for developing RAND specifications. However, the Working Group has an open question on options for accommodating RAND technologies in exceptional circumstances.
• Working Group Participants must now commit to Royalty-Free Licensing.
• Defensive use of patents is allowed only in the case where a holder of essential claims is sued for patent infringement in the implementation of a W3C Recommendation.

Bibliographic information: Patent Policy Working Group Royalty-Free Patent Policy. W3C Working Draft 26-February-2002. Edited by Daniel Weitzner (W3C/MIT). Version URL: http://www.w3.org/TR/2002/WD-patent-policy-20020226. Latest version URL: http://www.w3.org/TR/patent-policy/. Previous version URL: http://www.w3.org/TR/2001/WD-patent-policy-20010816/.

Consistent with the goal of promoting the "widest adoption of Web standards, W3C seeks to issue Recommendations that can be implemented on a Royalty-Free (RF) basis. Under this policy, W3C will not approve a Recommendation if it is aware that Essential Claims exist which are not available on Royalty-Free terms. To this end, RF Working Group charters will include as a requirement that the specification produced by the Working Group will be implementable on an RF basis, to the best ability of the Working Group and the Consortium." [from the WD]

Rationale for decisions in the working draft reflects public input, as documented in "Public Issues for Patent Policy Framework of 20010816". In particular, the public issue #1 (P1) cited concerns for discrimination and fragmentation:

• RAND will hurt open source developers
• RAND discriminates against the poor (developers or developing countries)
• The RAND / RF split will fragment the Web. Some examples were given where encumbered technologies may be worked around: Token ring v. Ethernet, PNG v. GIF, SVG v. Flash, MP3 v. Ogg Vorbis
• RAND is not in the best interest of the Web
• RAND will stifle innovation and reduce choice
• RAND harms end users, not just developers
• Patents and standards are incompatible
• Universal access and RAND are incompatible