W3C, the World Wide Web Consortium, recently released a Patent Policy Framework draft which provides for two forms of patent licensing that may be mandated by web standards: either RF for Royalty-Free, and RAND which stands for Reasonable… and Non-Discriminatory patent licensing. When the proposal belatedly came to the attention of the web community, there was a storm of protest against RAND patent licensing and in favor of RF. There are many reasons to dislike RAND, but the one I focus on as HP's Linux and Open Source Strategist is the fact that a required patent royalty is incompatible with Open Source software. Open Source is by definition royalty-free. Thus, “non-discriminatory” patent licensing actually does discriminate against Open Source.

Over the past several years, all successful new software standards have had one thing in common: an Open Source implementation. In order to maintain the many benefits to the public provided by Open Source software, we must prevent it from being marginalized by interoperability “standards” in which Open Source may not participate. Thus, we must insist that our interoperability standards be free of any legal encumbrance that would prohibit an Open Source implementation.

HP's policy regarding RAND may have been mis-interpreted by the public and the press, because the name of an HP attorney appears on the Patent Policy Framework draft. However, that attorney was not a major contributor to the draft, and he asserted to the committee upon HP's behalf that royalty-encumbered standards would not be successful. While HP has probably been the leading voice in this, they have not been alone. I am told that Sun, and surprisingly, Microsoft, have been supportive on the issue of avoiding patent encumbrances. However, one friend of Open Source may still need a nudge in the direction of supporting royalty-free standards.

So that HP's policy is clear to all, the following is an announcement from Jim Bell, HP's representative to the W3C advisory board:

HP Supports Royalty Free Standards for Web Infrastructure

With the extension until October 11 of the deadline for comments on the W3C's draft patent policy, now is the time to speak up if you have not already done so.

HP has been a leader in the advocacy of royalty free infrastructure standards for the Web. At the W3C Patent Policy Working Group, HP has been the most vigorous proponent of the importance of avoiding patent encumbrances on W3C Recommendations. As HP's representative to the W3C Advisory Committee, I have personally written to every W3C Member Company's representative on this topic. We have backed up our words with actions. For example, HP resigned as a co-submitter of the otherwise excellent Web Services Description Language (WSDL) proposal to W3C solely because other authors refused to let that proposal be royalty free.

As noted in Tim Berners-Lee's message initiating the current W3C discussion of royalties:

We and the W3C Team have assumed that Web Services technologies, such as a description language, would be considered common infrastructure and a basis for much exciting future work. We therefore believe that the draft Patent Policy, which holds that it is especially important that the Recommendations covering lower-layer infrastructure be implementable on an RF basis, is applicable. In this belief we are encouraged by certain members such as Canon, HP and Oracle. On the other hand, the other proposal drawn up by other members involves the possibilities of royalties being payable on RAND terms for Web Services technology.

There are sharp differences among companies on patent licensing for standards. For example, IBM's response to the current W3C draft policy states, The policy of licensing patents under RAND terms and conditions has allowed our best technical individuals to work together without becoming burdened by patent issues. HP feels that the prospect of subsequent discussions of potentially royalty bearing licenses is itself an unacceptable burden on standards discussions.

I would encourage you to let your voice be heard by submitting your comments on W3C's Patent Policy Framework Working Draft at http://www.w3.org/2001/10/patent-response .

Hewlett-Packard's position is that the fundamental standards for the Web should be royalty free.

Jim Bell
W3C Advisory Committee Representative
Director of Standards and Industry Initiatives
Hewlett-Packard Company

Thanks, Jim. It's interesting to note that Jim's previous position at HP was director of our Open Source and Linux Operation, which paved the way for HP's entry into the Linux business.

Agreement on royalty-free standards does not end this discussion. The licensing of patents embedded in standards must be compatible with the GPL license that is applied to the Linux operating system kernel, the MIT-derived license that is applied to the Apache web server, and a number of other software licenses. Because of the many thousands of copyright holders who have already contributed to existing products under those licenses, those software licenses can not be changed — the patent licensing mandated by W3C standards must accommodate them.

I join Jim in urging all of you to make your opinion be known by submitting your comments on W3C's Patent Policy Framework Working Draft at www.w3.org/2001/10/patent-response .

Many Thanks

Bruce Perens
Senior Strategist, Linux and Open Source
Hewlett-Packard Company

Nota Bene: For the purposes of this discussion, Free Software is a logical subset of Open Source.

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