Status of this document: This is a discussion draft with no official status. Derived from WHATWG IPR Policy
This Evergreen Patent Policy ("Evergreen Patent Policy") applies to all Contributions to Evergreen Specifications, and governs the intellectual property obligations of all Contributors to Evergreen Specifications and Evergreen Participants.
To the extent any other policies, conflict with this Evergreen Patent Policy, the Evergreen Patent Policy controls.
All Contributors make commitments regarding copyrights; all Contributors make additional patent-licensing commitments regarding Essential Patent Claims on Contributions; Evergreen Participants make additional patent-licensing commitments regarding Review Drafts.
In order to promote the widest adoption of Web standards, W3C seeks to issue Evergreen Specifications that can be implemented on a Royalty-Free (RF) basis. Subject to the conditions of this policy, W3C will not @@permit work to proceed?@@ if it is aware that Essential Patent Claims exist which are not available on Royalty-Free terms.
To this end, Working Group charters that encompass Evergreen work will include a reference to this Evergreen Patent 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.
"Contribution" means any proposal for potential inclusion in an Evergreen Specification; "Contributor" means any Individual or Entity making a Contribution.
"Essential Patent Claims" means "Essential Contribution Claims" and/or "Essential Review Draft Claims", as applicable.
"Essential Contribution Claims", with respect to a Contribution, means all claims in any patent or patent application in any jurisdiction in the world that would necessarily be infringed by the Contribution or by combination of the Contribution with the Evergreen Specification as it existed at the time of the Contribution ("Combination") as part of an implementation of the Evergreen Specification to which the Contribution was made. A claim is necessarily infringed hereunder only when it is not possible to avoid infringing it because there is no non-infringing alternative for implementation of the Contribution or Combination as Normative portions of the Evergreen Specification. For a Combination, Essential Contribution Claims only include those claims where the addition of the Contribution causes the Combination to necessarily infringe those claims. Existence of a non-infringing alternative shall be judged based on the state of the art at the time the Contribution is made.
"Essential Review Draft Claims", with respect to a Review Draft, means all claims in any patent or patent application in any jurisdiction in the world that would necessarily be infringed by implementation of the Review Draft. A claim is necessarily infringed hereunder only when it is not possible to avoid infringing it because there is no non-infringing alternative for implementation of the Normative portions of the Review Draft. Existence of a non-infringing alternative shall be judged based on the state of the art at the time the Review Draft is published.
any claims other than as set forth in "Essential Contribution Claims" or "Essential Review Draft Claims" even if contained in the same patent as Essential Patent Claims; and
claims which would be infringed only by:
"Excluded Claim" means a patent claim excluded in accordance with the requirements of Section 5.5. Patent Exclusions.
For purposes of this definition, the "Normative" portions of the Evergreen Specification or Review Draft 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 Evergreen Specification or Review Draft are informative, rather than Normative.
"Patent Exclusion Period" means the @@ 45 or 60 @@-Day period during which an Evergreen Participants may exclude patents from the royalty-free Patent-Licensing Obligations, as more fully set forth in Section 5.5. Patent Exclusions.
"Patent-Licensing Obligation" under this Policy (including both the "Contribution Licensing Obligation" and "Review Draft Licensing Obligations" referred to in Article 5. Patents) in this Evergreen Patent Policy) means a non-assignable, non-sublicensable license to the licensor's Essential Patent Claims to make, have made, use, sell, have sold, offer to sell, import, and distribute and dispose of implementations of the Evergreen Specification or Review Draft, and all subsequent versions with that content, that: 1. are available to all, worldwide; 2. extend to all Essential Patent Claims owned or controlled by the licensor; 3. may be limited to implementations of the Evergreen Specification or Review Draft, and to what is required by the Evergreen Specification or Review Draft; 4. may be conditioned on a grant of a reciprocal royalty-free license to all Essential Patent 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, as to a particular Evegreen Standard, with respect to any licensee when licensor is sued by licensee for infringement of claims essential to implement that Evergreen Specification; 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 above-referenced license as offered by the licensor.
"Patent Exclusion Notice" means a communication that complies with the requirements of Section 5.5.3. below.
The license conforming to the requirements in this Policy shall be made available by the licensor as long as the Evergreen Specification has not been rescinded by W3C. The term of such license shall be for the life of the patents in question, subject to the limitations of Subsection 2.8.3., below.
"Day" means 24 hours, commencing upon execution of a specific act, and is calculated without reference to time zones. To avoid confusion, Universal Coordinated Time is used.
"Participant" means a Member or Invited Expert designated in a chartered Working Group, in response to the W3C Process Call for Participation. Participant refers both to the individual, and in the case of a Member Representative, to the represented Member organization.
"Evergreen Participant" means a Participant in a Working Group chartered to produce Evergreen Specifications.
An Evergreen Participant may terminate particpation by resigning from the Working Group. Copyright licenses and patent commitments for which exclusion periods have closed remain binding. The departing participant has @@60 days after their actual resignation to exclude Essential Patent Claims included in an Evergreen Specification but not yet published in a Review Draft.
"Review Draft" is a version of an Evergreen Specification that is published as the reference for patent review and potential claim exclusion by Evergreen Participants.
"Evergreen Specification," as used herein, refers to a document produced or adopted with the intent that it be a normative specification, by a Working Group chartered to produce Evergreen Specifications. An editor's draft that has never received an indication of Working Group consensus is not an Evergreen Specification.
The Evergreen Patent Policy becomes effective @date@ and all Contributors and Evergreen Participants must agree to it order to contribute or participate in Evergreen Specifications development.
For all Contributions that are made in writing or reduced to writing, each Contributor warrants that it owns the copyright in each Contribution or otherwise has sufficient rights under copyright to make each Contribution under the Copyright License Grant set forth in Section 4.2. Inbound Copyright License Grant. If the Contributor does not own the copyright in a Contribution, the Contributor must identify
With respect to each Contribution and other submissions offered for inclusion in any Evergreen Specification document or related software, each Contributor or submitter agrees to grant, and hereby grants, licenses under copyright in accordance with the Copyright License Grant set forth in this "Evergreen Patent Policy" in effect at the time the Contribution or submission was made (the "Copyright License Grant"). The following is the current Copyright License Grant:
Contributor hereby grants to W3C, all Participants, implementers of the Evergreen Specification, and consumers of other documentation an unrestricted, perpetual, irrevocable, non-exclusive, transferable, worldwide, fee-free and royalty-free copyright license to copy, modify, disclose, reproduce, prepare derivative works of, publicly display, publicly perform, sublicense, and distribute Contributions and other materials in their original and modified forms, and to allow others to do the same, with no individual attribution, duty to account to any other copyright owner, or joint authorship or similar rights in any publication. For purposes of publication, the owner of documents published by W3C is the W3C.
Patent-Licensing Obligations are incurred with respect to Evergreen Specifications and Review Drafts in two ways:
For each Contribution, the Contribution Licensing Obligations are effective irrevocably on the 45th Day after the Contribution was first made.
For Evergreen Participants, the Review Draft Licensing Obligations are effective irrevocably (except as to Excluded Claims) upon conclusion of the Patent Exclusion Period and apply to the entire Review Draft.
Each Evergreen WG periodically publishes a Review Draft version of the Evergreen Specification, preferably every 6 months, and at a minimum once every 24 months, at most after 6 months. Review Drafts shall be published on the first business day of the month, except in exceptional circumstances. The Patent Exclusion Period commences automatically upon posted notice that the Review Draft has been published and continues for @@ 45 or 60 @@ Days. Upon conclusion of the Patent Exclusion Period, Evergreen Participants incur the Review Draft Licensing Obligations unless the Evergreen Participant has delivered a timely Patent Exclusion Notice.
When an Evergreen Participant joins an Evergreen WG, the most-recent Review Draft is deemed to have been "published" and a Patent Exclusion Period commences, with respect to that Evergreen Participant, when it joins.
Proposal:
An Evergreen Participant may exclude Essential Patent Claims from the Review Draft Licensing Obligations by providing a Patent Exclusion Notice to W3C within the Patent Exclusion Period. (An Evergreen Participant may file a Patent Exclusion Notice and continue to participate.) Evergreen Participant may not exclude patents on or made Essential by their own Contributions, except by timely withdrawal of the Contribution.
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.
The PAG is composed of:
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.
The charter should include:
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:
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 ("PAG Proposal"). The PAG Proposal must explain:
The PAG Proposal must include:
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 PAG Proposal shall be circulated for public comment and Advisory Committee review. The Director may also circulate the PAG 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.
When making a Contribution or as soon as feasible thereafter, the individuals who submit the Contribution (i.e., either an Individual contributor or the representatives of an Entity) must identify any patent that they (1) are personally aware of and (2) believe would be infringed by use or implementation of the Contribution, unless the Contributor is making the claims subject to the Patent-Licensing Obligations. (For the avoidance of doubt: No patent search is required.)
W3C Standards may be identified as "the W3C [Standard]" so that forks can be distinguished.
Evergreen Specifications and Review Drafts are published under the W3C Software and Document License.
This document includes material derived from the W3C Patent Policy. Copyright © 2004 W3C® (MIT, ERCIM, Keio, Beihang). See W3C Notices.
Derived from WHATWG IPR Policy, Copyright © 2018 WHATWG (Apple, Google, Mozilla, Microsoft). This work is licensed under a Creative Commons Attribution 4.0 International License.