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Is There Room for Royalties in W3C Recommendations?

The World Wide Web Consortium's (W3C) Patent Policy Working Group may return to the breach yet again this week in an attempt to create some sort of exception that will allow the standards body to include patented technologies, for which patent-holders could charge royalties, in some specifications.

The working group may vote as early as this week to push ahead with a draft proposal.

The working group first entertained a proposal that would have allowed the standards body to support reasonable and non-discriminatory (RAND) licensing for some specifications in August, 2001, unleashing a firestorm of controversy. Opponents of the proposal rigorously objected, saying the W3C should only support royalty-free (RF) specifications. The working group backed off from its RAND efforts in February, electing to focus its efforts on RF specifications and shunt the RAND question to the backburner.

But while Danny Weitzner, chair of the W3C's Patent Policy Working Group, agrees that the overwhelming priority for the W3C should be RF recommendations, he said the question remains whether there should be an exception of some sort that would allow for a recommendation that is a hybrid of RF and RAND technologies. Hypothetically, a W3C group could spend years working on a recommendation before a company that is not a member of the W3C comes forward and asserts a patent claim. If that company is not willing to make its patent available on an RF basis, the question is whether the working group should be forced to scrap its years of labor or be allowed to negotiate a RAND license in order to save the work that had already gone into the specification.

The current patent policy calls on all W3C working group participants to commit to RF licensing, and only allows the defensive use of patents in a case where a holder of essential claims is sued for patent infringement in the implementation of a W3C recommendation.

"What we've got, as a baseline, is a royalty-free policy," Weitzner told internetnews.com Friday. "What we've been doing for a year is developing the royalty-free policy. But one of the outstanding issues that we have is what happens when we come upon royalty-bearing technology. We have rejected the RAND track [in which working groups would have been able to set out to work on a RAND specification deliberately]. So the question is what happens when you're doing royalty-free work and you come upon a RAND claim? Can there be a hybrid?"

Weitzner said the working group is currently working on a proposal that it may vote upon this week. However, he noted the proposal is not completed, and the vote may not come this week, or at all.

"The proposal that we may be voting on may never materialize," he said. "We may come to the end of our meeting next week and just decide that we're not doing this at all."

Even if the group does vote on such a proposal and it is approved, that won't be the end of the issue. If it is approved, a draft proposal will be released followed by a public comment period. Even then it would have to go before the full W3C and another public comment period before it could be pushed forward as a recommendation.

In any event, because the group is discussing the rules which govern the W3C, the meeting will not be public. However, Weitzner said his working group will likely release the results of the discussion a week or so after the vote.