Daniel Weitzner, W3C Technology and Society Domain Leader and Chair of the W3C Patent Policy Working Group recently provided testimony on patents and IP licensing at a United States DOJ/FTC hearing. The meeting was held on 18-April-2002, before the "United States Department of Justice and United States Federal Trade Commission Joint Hearings on Competition and Intellectual Property Law and Policy in the Knowledge-Based Economy: Standards and Intellectual Property." The presentation contributed to an ongoing US government investigation into 'Standard-Setting Practices: Competition, Innovation and Consumer Welfare'. Weitzner's stated goal in the testimony was to "contribute to the factual basis of [government] inquiry into antitrust, intellectual property and technical standards by providing an overview of the experience that the World Wide Web community has had with patents over the last four years. This testimony highlighted three main points: (1) First, the Web itself has been possible only in the context of open, royalty-free (RF) standards. (2) Second, the 'reasonable, non-discriminatory terms' (RAND) licensing model common in many traditional standards bodies is unlikely to be accepted in the Web environment. (3) Third, W3C is working hard to develop a Royalty-Free patent policy that encourages the continued evolution of the Web as a universal information space, while respecting our Member's legitimate intellectual property rights." Also declared by Weitzner: "Of critical importance to the rise of electronic commerce as a new marketplace, Web technology allows a wide variety of new systems and technologies to be built on top of the basic architecture of the Web, thus enabling continual innovation in the design of Web-based applications and services... Whether patents and claims related to W3C technologies are in fact valid or not, the risk of costly, time-consuming litigation and possible limitations on use by the right holders, is sufficient to suffocate much of the dynamic development activity that has been driving the Web industry."

Bibliographic detail: "Before the United States Department of Justice and United States Federal Trade Commission Joint Hearings on Competition and Intellectual Property Law and Policy in the Knowledge-Based Economy: Standards and Intellectual Property: Licensing Terms." Testimony of Daniel J. Weitzner (Technology and Society Domain Leader, World Wide Web Consortium). Presented in a session on 'Licensing Terms in Standards Activities'. 18-April-2002. Great Hall, Department of Justice Main Building, Washington, DC USA.

Background on the hearings: "The Federal Trade Commission and the Department of Justice's Antitrust Division today announced topics, times and locations, and participants for upcoming April and May sessions of their joint hearings on 'Competition and Intellectual Property Law and Policy in the Knowledge-Based Economy.' These sessions will continue the agencies' inquiry into the implications of competition and patent law and policy for innovation and other aspects of consumer welfare by focusing on a number of topics central to the intersection of antitrust and intellectual property law." [from the announcement]

Excerpts from the text of the testimony:

"I am the head of the World Wide Web Consortium's (W3C) Technology and Society activities, responsible for development of technology standards that enable the Web to address social, legal, and public policy concerns... My goal is to contribute to the factual basis of your inquiry into antitrust, intellectual property and technical standards by providing an overview of the experience that the World Wide Web community has had with patents over the last four years.

This testimony will highlight three main points: (1) First, the Web itself has been possible only in the context of open, royalty-free (RF) standards. (2) Second, the 'reasonable, non-discriminatory terms' (RAND) licensing model common in many traditional standards bodies is unlikely to be accepted in the Web environment. (3) Third, W3C is working hard to develop a Royalty-Free patent policy that encourages the continued evolution of the Web as a universal information space, while respecting our Member's legitimate intellectual property rights...

Of critical importance to the rise of electronic commerce as a new marketplace, Web technology allows a wide variety of new systems and technologies to be built on top of the basic architecture of the Web, thus enabling continual innovation in the design of Web-based applications and services. Two key attributes of Web standards are responsible for the ubiquity and flexibility of the Web: 1) simple, extensible design, and 2) open, unencumbered standards... Whether patents and claims related to W3C technologies are in fact valid or not, the risk of costly, time-consuming litigation and possible limitations on use by the right holders, is sufficient to suffocate much of the dynamic development activity that has been driving the Web industry...

The strongest reaction [to the W3C Patent Policy Working Group's first proposal] came from various communities of open source developers who declared, (in several thousand emails sent to the W3C public comment mailing list) that a RAND approach would cause open source developers to stop using W3C web standards, impel some to form alternate Web standards, thus balkanizing the Web, and overall constituted a take-over of the Web by large corporate interests...

W3C [has] responded to input from W3C Members and the public by adding invited experts to the Patent Policy Working Group to represent the Open Source community, creating a task force within the Patent Policy Working Group to examine how to accommodate the Open Source community, and creating a public home page for the PPWG, publishing public meeting records, and committing to additional public drafts of the framework before the policy was finalized.

Based on input from a meeting the W3C Members, the Patent Policy Working Group recently issued a draft royalty free policy. The main features of this policy are: (1) RF licensing goals for W3C Recommendations; (2) RF licensing obligations that Working Group participants will undertake as a condition of Working Group membership, along with means of excluding specific patents from those obligations; (3) the definition of a Royalty-Free license; (4) disclosure rules for W3C Members; (5) an exception handling process for situations in which the Royalty-Free status of a specification comes under question..."

Summary of W3C "Patent Policy and Standards" from the Technology and Society Domain website: "The [W3C] Patent Policy Working Group has been chartered to advise W3C on the means to address the growing challenge that patent claims pose to the development of open standards for the Web. Web technology has developed over the last decade through an unprecedented burst of entrepreneurial energy and global cooperation. Both the competitive forces which have lead to innovative technology, and the cooperative spirit which has produced global interoperability standards at an extremely rapid pace have occurred, until very recently, in a market environment without any significant intellectual property licensing requirements. In contrast to other network industries such as telecommunications or transportation, innovation has occurred without recourse to patent rights to protect investment in research and development. The second decade of the Web has already demonstrated that patents will be a factor in the ongoing development of the World Wide Web infrastructure. In an number of cases of the last few years, patent claims have raised questions about the ability to implement W3C Recommendations. Recently augmented with representatives from the Open Source community and a more public process, the Working Group is proceeding with work on developing a patent policy whose primary goal is to produce Web standards that can be implemented on a Royalty-Free basis."