The W3C Patent Policy governs the handling of patents in the process
of producing Web standards. The goal of this policy is to assure that
Recommendations produced under this policy can be implemented on a
Royalty-Free (RF) basis.
This document has been updated with editorial corrections in the
5 February 2004 (updated 1 August 2017)
W3C Patent Policy.
This is the 5 February 2004 version of the W3C Patent Policy. The
W3C Patent Policy Transition
Procedure describes how W3C is implementing this patent
policy.
This document has been reviewed by W3C Members and other interested
parties and has been endorsed by the W3C Director as the W3C Patent
Policy. It is a stable document and may be used as reference material
or cited as a normative reference from another document. W3C's role in
making this policy is to provide a stable policy for handling patent
claims in the context of W3C Recommendations and to enhance the
functionality and interoperability of the Web. This policy was
produced by the W3C Patent
Policy Working Group.
The only differences between this version and the 20 May
2003 version that was reviewed by the W3C Membership are updated
links to the W3C Process Document [PROCESS] and a change to one
administrative detail (allowing the Team to use other mechanisms than
email for disclosures).
Please report errors in this document to the www-patentpolicy-comment@w3.org
mailing list (public
archive). The list of
known errors is public.
The English version of this policy is the only normative
version.
For implementation material and other informative documents, please
see the W3C
Patent Policy Overview.
This patent policy describes:
- licensing goals for W3C Recommendations
- licensing obligations that Working Group participants will
undertake as a condition of Working Group participation, along with
means of excluding specific patents from those obligations
- the definition of a W3C Royalty-Free license
- disclosure rules for W3C Members
- an exception handling process for situations in which the
Royalty-Free status of a specification comes under question
- definition of Essential Claims
All numbered sections of this document (1-8), as well as hyperlinks
to material within and outside of this document, are normative.
In order to promote the widest adoption of Web standards, W3C seeks
to issue Recommendations that can be implemented on a Royalty-Free (RF) basis. Subject to the conditions
of 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, Working Group charters will include a reference to this
policy and a requirement that specifications produced by the Working
Group will be implementable on an RF basis, to the best ability of the
Working Group and the Consortium.
The following obligations shall apply to all participants in W3C
Working Groups. These obligations will be referenced from each Working
Group charter and Calls for Participation.
As a condition of participating in a Working Group, each participant
(W3C Members, W3C Team members, invited experts, and members of the
public) shall agree to make available under W3C RF
licensing requirements any Essential
Claims related to the work of that particular Working Group. This
requirement includes Essential Claims that the participant owns and any
that the participant has the right to license without obligation of
payment or other consideration to an unrelated third party. With the
exception of the provisions of section 4 below, W3C RF licensing
obligations made concerning the work the particular Working Group and
described in this policy are binding on participants for the life of
the patents in question and encumber the patents containing Essential Claims, regardless of changes in
participation status or W3C Membership.
Only the affirmative act of joining a Working Group, or otherwise
agreeing to the licensing terms described here, will obligate a Member
to the W3C RF licensing commitments. Mere Membership in W3C alone,
without other factors, does not give rise to the RF licensing
obligation under this policy.
At the time a W3C
Member Submission [PROCESS,
section 11] is made, all Submitters and any others who provide patent
licenses associated with the submitted document must indicate whether
or not each entity (Submitters and other licensors) will offer a
license according to the W3C RF licensing
requirements for any portion of the Submission that is subsequently
incorporated in a W3C Recommendation. The W3C Team may acknowledge the
Submission if the answer to the licensing commitment is either
affirmative or negative, and shall not acknowledge the Submission if no
response is provided.
Invited experts participate in Working Groups in their individual
capacity. An invited expert is only obliged to license those claims
over which s/he exercises control.
Under the following conditions, Working Group participants may
exclude specifically identified and disclosed Essential Claims from the
overall W3C RF licensing requirements:
Specific Essential Claims may be excluded from the W3C RF licensing requirements by a
participant who seeks to remain in the Working Group only if that
participant indicates its refusal to license specific claims no later
than 150 days after the publication of the first
public Working Draft [PROCESS, section 7.4.1] by specifically
disclosing Essential Claims that will not
be licensed on W3C RF terms. A participant who excludes Essential
Claims may continue to participate in the Working Group.
If any claims are made essential by the final Recommendation
[PROCESS, section 7.1.1] as a
result of subject matter not present or apparent in the latest public
Working
Draft [PROCESS, section
7.1.1] published within 90 days after the first public Working Draft,
the participant may exclude these new Essential Claims, and only these
claims, by using this exclusion procedure within 60 days after the
publication of the Last
Call Working Draft [PROCESS, section 7.4.2]. After that
point, no claims may be excluded. (Note that if material new subject
matter is added after Last Call, then a new Last Call draft will have
to be produced, thereby allowing another exclusion period for 60 days
after that most recent Last Call draft.)
A participant may resign from the Working Group within 90 days after
the publication of the first public Working Draft and be excused from
all licensing commitments arising out of Working Group
participation.
If a participant leaves the Working Group later than 90 days after
the publication of the first public Working Draft, that participant is
only bound to license Essential Claims based on subject matter
contained in the latest Working Draft published before the participant
resigned from the Working Group. In addition, departing participants
have 60 days after their actual resignation to exclude Essential Claims
made essential by documents not referenced in the Call for Exclusion
(see section 4.5) if:
- such claims are essential to subject matter that is contained in
the latest Working Draft published before the participant resigns,
and
- such subject matter is not present or apparent in the latest
Working Draft published within 90 days after the first public Working
Draft.
The participant follows the same procedures specified in this
section 4 for excluding claims in issued patents, published
applications, and unpublished applications. Participants resigning from
a Working Group are still subject to all disclosure obligations
described in section 6.
Participants who join a Working Group more than 90 days after the
publication of the first public Working Draft must exclude Essential
Claims covered in the latest Working Draft published within 90 days
after the first public Working Draft at the later of 150 days after the
publication of the first public Working Draft or upon joining the
Working Group.
Exclusion of Essential Claims in pending, unpublished applications
follows the procedures for exclusion of issued claims and claims in
published applications in section 4.1 through 4.3, except that the
final deadline for exclusion of unpublished claims is at Last Call plus
60 days for any material, regardless of whether or not it was contained
in the documents referenced in the Call for Exclusion document.
Nevertheless, participants have a good faith obligation to make such
exclusions as soon as is practical after the publication of the first
Working Draft that includes the relevant technology.
Any exclusion of an Essential Claim in an unpublished application
must provide either:
- the text of the filed application; or
- identification of the specific part(s) of the specification whose
implementation makes the excluded claim essential.
If option 2 is chosen, the effect of the exclusion will be limited
to the identified part(s) of the specification.
A Call for Exclusion will be issued by the Working Group Team
Contact indicating the relevant documents against which participants
must make exclusion statements as well as precise dates and deadlines
for making any exclusions. In case there is any dispute about the dates
for exclusion, the dates indicated in the Call for Exclusion are
controlling. The Call for Exclusion will be sent to the Working Group
mailing list and the Advisory Committee Representatives of all
organizations participating in the Working Group. In the event that a
Working Group issues more than one Recommendation-track document, the
exclusion procedure will be employed for each series of documents
individually.
With respect to a Recommendation developed under this policy, a W3C Royalty-Free license shall mean a
non-assignable, non-sublicensable license to make, have made, use,
sell, have sold, offer to sell, import, and distribute and dispose of
implementations of the Recommendation that:
1. shall be available to all, worldwide, whether or not they are W3C
Members;
2. shall extend to all Essential Claims
owned or controlled by the licensor;
3. may be limited to implementations of the Recommendation, and to
what is required by the Recommendation;
4. may be conditioned on a grant of a reciprocal RF license (as
defined in this policy) to all Essential
Claims owned or controlled by the licensee. A reciprocal license
may be required to be available to all, and a reciprocal license may
itself be conditioned on a further reciprocal license from all.
5. may not be conditioned on payment of royalties, fees or other
consideration;
6. may be suspended with respect to any licensee when licensor is
sued by licensee for infringement of claims essential to implement any
W3C Recommendation;
7. may not impose any further conditions or restrictions on the use
of any technology, intellectual property rights, or other restrictions
on behavior of the licensee, but may include reasonable, customary
terms relating to operation or maintenance of the license relationship
such as the following: choice of law and dispute resolution;
8. shall not be considered accepted by an implementer who manifests
an intent not to accept the terms of the W3C
Royalty-Free license as offered by the licensor.
License term:
9. The RF license conforming to the requirements in this policy
shall be made available by the licensor as long as the Recommendation
is in effect. The term of such license shall be for the life of the
patents in question, subject to the limitations of 5(10).
10. If the Recommendation is rescinded by W3C, then no new licenses
need be granted but any licenses granted before the Recommendation was
rescinded shall remain in effect.
All Working Group participants are encouraged to provide a contact
from which licensing information can be obtained and other relevant
licensing information. Any such information will be made publicly
available along with the patent disclosures for the Working Group in
question.
Disclosure is required when both of the following are true:
- an individual in a Member organization receives a disclosure
request as described in section 6.3; and
- that individual has actual knowledge of a patent which the
individual believes contains Essential Claim(s) with respect to the
specification for which disclosure is requested.
Anyone in a Member organization who receives a disclosure request
and who has such knowledge must inform that AC Rep. Where disclosure is
required, the AC Rep will do so.
The disclosure obligation as to a particular claim is satisfied if
the holder of the claim has made a commitment to license that claim
under W3C RF licensing requirements and the claim
is no longer subject to exclusion under section 4. An Essential Claim
is no longer subject to exclusion if a patent holder has affirmatively
agreed to license the Essential Claim (effectively waiving its right to
exclude such patent under section 4) or if the relevant exclusion
period under section 4 has lapsed.
Disclosure requests will be included in the "Status of This
Document" section of each Recommendation track document as it reaches
each new maturity level (Working Draft, Last Call Working Draft,
Candidate Recommendation, Proposed Recommendation, Recommendation).
Separate requests may be issued by the W3C to any party suspected of
having knowledge of Essential Claims. Such disclosure requests will
instruct the recipient to respond through their AC Rep (in the case of
Members) or a W3C contact (in the case of non-Members). Disclosure
requests other than those that appear in the specification itself
should be directed to the AC Rep.
Disclosure requests will provide administrative details for
making disclosures.
Disclosure statements must include:
- the patent number, but need not mention specific claims
- the Working Group and/or Recommendation to which it applies
In the case of laid-open or published applications, the Member's
good faith disclosure obligation extends to unpublished amended and/or
added claims that have been allowed by relevant legal authorities and
that the Member believes to be Essential Claims. To satisfy the
disclosure obligation for such claims, the Member shall either:
- disclose such claims, or
- identify those portions of the W3C specification likely to be
covered by such claims.
If a W3C Member includes claims in a patent application and such
claims were developed based on information from a W3C Working Group or
W3C document, the Member must disclose the existence of such pending
unpublished applications.
Satisfaction of the disclosure requirement does not require that the
discloser perform a patent search or any analysis of the relationship
between the patents that the Member organization holds and the
specification in question.
Disclosure of third party patents is only required where the
Advisory Committee Representative or Working Group participant has been
made aware that the third party patent holder or applicant has asserted
that its patent contains Essential Claims,
unless such disclosure would breach a pre-existing non-disclosure
obligation.
The disclosure obligation is an ongoing obligation that begins with
the Call for Participation. Full satisfaction of the disclosure
obligation may not be possible until later in the process when the
design is more complete. In any case, disclosure as soon as practically
possible is required.
The disclosure obligation terminates when the Recommendation is
published or when the Working Group terminates.
Invited experts or members of the public participating in a Working
Group must comply with disclosure obligations to the extent of their
own personal knowledge.
Patent disclosure information for each specification on the
Recommendation track will be made public along with each public Working
Draft issued by the Working Group.
In the event a patent has been disclosed that may be essential, but
is not available under W3C RF licensing
requirements, a Patent Advisory Group (PAG) will be launched to
resolve the conflict. The PAG is an ad-hoc group constituted
specifically in relation to the Working Group with the conflict. A PAG
may also be formed without such a disclosure if a PAG could help avoid
anticipated patent problems. During the time that the PAG is operating,
the Working Group may continue its technical work within the bounds of
its charter.
A PAG may also be convened in the event Essential Claims are
discovered after a Recommendation is issued. In this case the PAG will
be open to any interested Member, though the PAG may choose to meet
without the holder of the Essential Claims in question.
The PAG is composed of:
- Advisory Committee Representatives of each W3C Member organization
participating in the Working Group (or alternate designated by the AC
Rep)
- Working Group Team Contact
- W3C counsel
- Working Group Chair, ex officio
- Domain Leader responsible for the Working Group
- Others suggested by the Working Group Chair and/or the Team with
the approval of the Director
W3C Member participants in the PAG should be authorized to represent
their organization's views on patent licensing issues. Any participant
in the PAG may also be represented by legal counsel, though this is not
required. Invited experts are not entitled to participate in the PAG,
though the PAG may chose to invite any qualified experts who would be
able to assist the PAG in its determinations.
W3C expects to provide qualified legal staffing to all PAGs in the
form of a Team member who develops experience with the PAG process and
patent issues at W3C. Legal staff to the PAG will represent the
interests of the Consortium as a whole.
The PAG will be convened by the Working Group Team Contact, based on
a charter developed initially by the Team. The timing for convening the
PAG is at the discretion of the Director, based on consultation with
the Chair of the Working Group. In some cases, convening a PAG before a
specific patent disclosure is made may be useful. In other cases, it
may be that the PAG can better resolve the licensing problems when the
specification is at the Last Call or Candidate Recommendation maturity
level.
The charter should include:
- clear goals for the PAG, especially a statement of the question(s)
the PAG is to answer.
- duration.
- confidentiality status, which must follow the underlying Working
Group (Member only, public, etc.).
The PAG charter must specify deadlines for completion of individual
work items it takes on. The PAG, once convened, may propose changes to
its charter as appropriate, to be accepted based on consensus of the
PAG participants. The Team will choose a member of the PAG to serve as
Chair. A single PAG may exist for the duration of the Working Group
with which it is associated if needed.
In order to obtain input from the interested public at large, as
soon as the PAG is convened, the PAG charter will be made public, along
with all of the patent disclosure and licensing statements applicable
to the Working Group in question.
After appropriate consultation, the PAG may conclude:
- The initial concern has been resolved, enabling the Working Group
to continue.
- The Working Group should be instructed to consider designing around
the identified claims.
- The Team should seek further information and evaluation, including
and not limited to evaluation of the patents in question or the terms
under which W3C RF licensing requirements may be met.
- The Working Group should be terminated.
- The Recommendation (if it has already been issued) should be
rescinded.
- Alternative licensing terms should be considered. The procedure in
section 7.5.3 must be followed.
Outcomes 4, 5 or 6 require an Advisory Committee review and
Director's decision. In any case, the PAG must state its Proposal and
reasons in a public W3C document.
After having made every effort to resolve the conflict through
options 1, 2, and 3 under 7.5.1, the PAG, by consensus
[PROCESS, section 3.3], may
propose that specifically identified patented technology be included in
the Recommendation even though such claims are not available according
to the W3C RF licensing requirements of this policy. The PAG Proposal
must explain:
- why the chartered goals of the Working Group cannot be met without
inclusion of the identified technology;
- how the proposed licensing terms will be consistent with widespread
adoption.
The PAG Proposal must include:
- a complete list of claims and licensing terms of the proposed
alternative arrangements; and,
- a proposed charter for the Working Group, unless the Recommendation
has been issued and no new work is required.
If the Director determines that the PAG Proposal is the best
alternative consistent with the W3C mission, the interests of the Web
community, and is clearly justified despite the expressed preference of
the W3C Membership for RF licensing, then the Proposal shall be
circulated for public comment and Advisory Committee review. The
Director may also circulate the Proposal for Advisory Committee review
without such endorsement. Should the PAG Proposal be rejected, then
either sub-paragraph 4 or 5 of section 7.5.3 will apply as appropriate,
without further action of the Advisory Committee. Members of the
Working Group who are bound to RF terms are not released from their
obligations by virtue of the PAG Proposal alone. As with any newly
chartered Working Group, new commitments must be made, along with
possible exclusions. In order to expedite the process, the PAG Proposal
should consider whether additional claims would be excluded under the
new charter and include such information in the PAG Proposal.
"Essential Claims" shall mean all claims in any patent or patent
application in any jurisdiction in the world that would necessarily be
infringed by implementation of the Recommendation. A claim is
necessarily infringed hereunder only when it is not possible to avoid
infringing it because there is no non-infringing alternative for
implementing the normative portions of the Recommendation. Existence of
a non-infringing alternative shall be judged based on the state of the
art at the time the specification becomes a Recommendation.
The following are expressly excluded from and shall not be deemed to
constitute Essential Claims:
- any claims other than as set forth above even if contained in the
same patent as Essential Claims; and
- claims which would be infringed only by:
- portions of an implementation that are not specified in the
normative portions of the Recommendation, or
- enabling technologies that may be necessary to make or use any
product or portion thereof that complies with the Recommendation and
are not themselves expressly set forth in the Recommendation (e.g.,
semiconductor manufacturing technology, compiler technology,
object-oriented technology, basic operating system technology, and the
like); or
- the implementation of technology developed elsewhere and merely
incorporated by reference in the body of the Recommendation.
- design patents and design registrations.
For purposes of this definition, the normative portions of the
Recommendation shall be deemed to include only architectural and
interoperability requirements. Optional features in the RFC 2119
[KEYWORDS] sense are
considered normative unless they are specifically identified as
informative. Implementation examples or any other material that merely
illustrate the requirements of the Recommendation are informative,
rather than normative.
- [KEYWORDS]
- Key words
for use in RFCs to Indicate Requirement Levels, S. Bradner.
The Internet Society, March 1997. This RFC is available by FTP at
ftp://ftp.rfc-editor.org/in-notes/rfc2119.txt.
- [PROCESS]
- World
Wide Web Consortium Process Document, I. Jacobs, Editor.
W3C, 5 February 2004. The latest version of this
document is http://www.w3.org/Consortium/Process.
W3C's evolving patent policy has been informed by help, comments,
criticism, and occasional rants by W3C Members, many voices from the
independent developer and Open Source/Free Software communities, W3C
Advisory Committee Representatives, the W3C Team, the W3C Advisory
Board, and participants in the Patent Policy Working Group. Those who
have participated in the beta testing of this policy, leading up to the
W3C Current Patent
Practice document, have also made an invaluable contributions to
shaping this document in a manner that will help in achieving W3C's
mission.
Every participant in the Patent Policy Working Group has made
substantial contributions to this document. Since its inception, the
following individuals have participated in the Working Group:
Jean-François Abramatic (W3C), Chuck Adams (IBM), Angela Anderson
(Nortel), Anders Arvidsson (Nokia), Martin Ashton (Reuters, Ltd.), Carl
Cargill (Sun Microsystems), Wanda Cox (Apple Computer), W. Mike Deese
(Microsoft), Mark DeLuca (Cozen O'Connor for Microsoft), Don Deutsch
(Oracle), Tom Frost (AT&T), Michael Gelblum (Oracle), Mari Georges
(ILOG S.A.), Lisa Goldman (Sun Microsystems), Eduardo Gutentag (Sun
Microsystems), Toon Groenendaal (Philips Electronics), Michele Herman
(Microsoft), Richard J. Holleman (IBM), Ian Jacobs (W3C), Glen Johnson
(Nortel Networks), Jerry Kellenbenz (Apple Computer), George Kerscher
(Daisy Consortium), Alan Kotok (W3C), Gerry Lane (IBM), Arnaud Le Hors
(IBM), Susan Lesch (W3C, Team Contact), Roger Martin (AOL), Bede McCall
(MITRE), Catherine McCarthy (Sun Microsystems), Lloyd McIntyre (Xerox),
Earl Nied (Intel), Steve Nunn (The Open Group), Scott K. Peterson
(Hewlett-Packard), Tony E. Piotrowski (Philips Electronics), Gene
Potkay (Avaya), Chuck Powers (Motorola), Barry Rein (Pennie &
Edmonds for W3C), Gib Ritenour (Nortel Networks), Michael Schallop
(then Sun Microsystems), Kevin Smith (Nortel Networks), George Tacticos
(IBM), David Turner (Microsoft), Daniel Weitzner (W3C, Working Group
Chair), George Willingmyre (GTW Associates), Helene Plotka Workman
(Apple Computer), Don Wright (Lexmark), Joe Young (Xerox), and Tom Zell
(Xerox). Invited experts Eben Moglen (Free Software Foundation), Bruce
Perens (Software in the Public Interest), and Larry Rosen (Rosenlaw.com
for Open Source Initiative) participated and contributed fully.
Finally, Susan Lesch was an invaluable staff contact and has done a
masterful job on several occasions to help this inherently complex
document read more easily and clearly.