W3C unveils its patent plans

The standards body has been grappling with the issue of how to deal with patents for more than three years, hoping to strike a balance between those who seek royalty-free standards and those who demand payment for their technologies. On Wednesday, the World Wide Web Consortium's (W3C) Patent Policy Working Group released a final draft of its Royalty-Free Patent Policy, which will be open for public comment for six weeks. The group hopes to have a final plan endorsed by its director sometime in May.

The basic premise of the policy, a compromise between open-source advocates and proprietary software companies, is that patented technology can be included in standards development as long as it is royalty-free in most cases.

However, the latest draft does contain provisions to incorporate technology into Web standards when that technology does not comply with certain inclusion standards, such as when the patent holder wants to charge fees. In that case, the W3C's Patent Advisory Group will investigate ways to deal with the issue. Some of those methods may include designing around the patent, removing it altogether or halting work in the area. The group also could recommend that the patented work be included in the standard anyway, even if the practice conflicts with the W3C's royalty-free goals. In that case, the public would be allowed to review the licensing terms.

"Some people will look at this and say this is a huge loophole," said Daniel Weitzner, chair of the W3C's Patent Policy Working Group. "The way I see it, it gives us the flexibility to look at situations that don't fit in with our royalty-free licensing policy and decide what to do rather than hit a dead end. I think it will be used very rarely."

Patents have been a flash point among software developers, companies and open-source and free software advocates. Some proprietary software companies rely on patents as part of their business strategy, cashing in on large patent portfolios by requiring licensing fees. Those companies may be reluctant to give away the rights to what they consider their intellectual property after investing time and money creating the technology. On the other hand, many in the open-source community believe patents impede the development process and can clog the adoption of standards.

"No single group--patent holders, open-source developers or users--got everything it wanted," Weitzner said. "But with this final draft, the Working Group believes it has found a common, workable path that will encourage the widespread adoption of W3C standards across a wide range of business models, from proprietary to open source."

In addition to the exception principles, the latest version of the policy includes provisions requiring patent holders to speak up earlier in the process if they want their technology excluded from the standards process. Working group members seeking to exclude their patented technology from a standard have until 90 days after the first draft of a working paper on the standard is released to notify the group of its patent. After that, members waive their rights to place restrictions on how their technology is used in the standard. In previous cases, some companies have waited until a standard is fully developed to declare their patent and demand licensing fees.

Other changes to the policy include a few minor editorial changes and the removal of a provision for interim licenses. Members of the working group include companies such as AOL Time Warner, Apple Computer, AT&T, Hewlett-Packard, Motorola, Nokia, and Oracle and experts from the Free Software Foundation, Software in the Public Interest, and the Open Source Initiative.