Status of this document: This is a discussion draft with no official status. Derived from WHATWG IPR Policy
This W3C Patent Policy ("W3C Patent Policy") applies to all Contributions to W3C Specifications, and governs the intellectual property obligations of all Contributors to W3C Specifications and Working Group Participants.
To the extent any other policies, conflict with this W3C Patent Policy, the W3C Patent Policy controls.
All Contributors make commitments regarding copyrights; all Contributors make additional patent-licensing commitments regarding Essential Patent Claims on Contributions; Working Group Participants make additional patent-licensing commitments regarding Patent Review Drafts.
In order to promote the widest adoption of Web standards, W3C seeks to issue W3C 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 will include a reference to this W3C 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 W3C 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 implementations of the Contribution or by implementations of the combination of the Contribution with the W3C Specification as it existed at the time of the Contribution ("Combination") as part of an implementation of the W3C 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 W3C 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 Patent 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 Patent 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 Patent Review Draft. Existence of a non-infringing alternative shall be judged based on the state of the art at the time the Patent 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 W3C Specification or Patent 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 W3C Specification or Patent Review Draft are informative, rather than Normative.
"Patent Exclusion Period" means the period during which an Working Group 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 W3C 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 W3C Specification or Patent 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 W3C Specification or Patent Review Draft, and to what is required by the W3C Specification or Patent 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 W3C 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 W3C 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.
Subject to the suspension right in Section 2.6. Patent Licensing Obligation, upon the licensee's request, licenses granted must be retroactive to the effective dates of the obligations set forth in Sections 5.2. Contribution Licensing Obligations and 5.3. Review Draft Licensing Obligations, as applicable.
If the W3C Specification is rescinded by W3C, then no new licenses need be granted but any licenses granted before the W3C Specification was rescinded shall remain in effect.
"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.
"Working Group Participant" means a Member or Invited Expert designated in a Working Group chartered to produce W3C Specifications under this W3C IPR Policy 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.
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.
An Working Group Participant may terminate participation 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 W3C Specification but not yet published in a Patent Review Draft. Additionally, if a participant resigns from the Working Group within 90 days after the publication of a First Patent Review Draft it is excluded from all Review Draft Licensing Obligations relating to that W3C Specification.
"Patent Review Draft" is a version of an W3C Specification that is published as the reference for patent review and potential claim exclusion by Working Group Participants.
"W3C Specification," as used herein, refers to a document produced or adopted under this W3C Patent Policy with the intent that it be a normative specification, by a Working Group chartered to do so. A document that Working Group does not have consensus to work on is not an W3C Specification; Working Groups must clearily identify documents that they have consensus to work on.
The W3C Patent Policy becomes effective @date@ and all Contributors and Working Group Participants must agree to it order to contribute or participate in W3C 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 W3C 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 "W3C 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 W3C 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 W3C Specifications and Patent 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 Working Group 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 Patent Review Draft.
Each Working Group periodically publishes a Patent Review Draft of the Specification for the purpose of soliciting patent licensing commitments. The first such Patent Review Draft of a particular Specification is known as the First Patent Review Draft.
A Patent Exclusion Period commences automatically upon posted notice that the Patent Review Draft has been published. In the case of the First Patent Review Draft, the Patent Exclusion Period continues for 150 Days; for all other Patent Review Drafts, it continues for @@ 45 or 60 @@ Days. Upon conclusion of the Patent Exclusion Period, Working Group Participants incur the Review Draft Licensing Obligations unless the Working Group Participant has delivered a timely Patent Exclusion Notice.
When an Working Group Participant joins an Working Group, an exceptional @@ 45 or 60 or 150 @@-day Patent Exclusion Period commences solely for that Working Group Participant with respect to the most recently published Patent Review Draft of each W3C Specification within the scope of that Working Group’s charter.
@@ should this moved to the Process, which is easier to update, rather than baked into the IPR policy, which is meant to be much more stable.
To facilitate review scheduling and timeliness, Patent Review Drafts should (but are not required to) be published:
Publication of a Patent Review Draft must be accompanied by an announcement of the publication, which should include the dates of the Patent Exclusion Period, diffs from the previous Patent Review Draft (if any), and an explanation of any divergence from the recommended publication cadence.
An Working Group 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 Working Group Participant may file a Patent Exclusion Notice and continue to participate.) Working Group Participant may not exclude patents on or made Essential by their own Contributions, except by timely withdrawal of the Contribution.
For Working Group Participants that continue their participation through successive Patent Review Drafts, the scope of the patent-exclusion opportunity extends only to material that could not have been the subject of an exclusion by that Working Group Participant with respect to a preceding Patent Review Draft (i.e., material that is new or has been modified such that it creates the potential for infringement not present in any previous Patent Review Draft the Working Group Participants could have excluded against).
To be effective, a Patent Exclusion Notice must (1) be delivered to W3C within the Day period from publication of the Patent Review Draft, (2) provide the patent or publication number (for published applications) or application number (for unpublished applications) of the patent to be excluded, and (3) identify the relevant sections of the Patent Review Draft that would infringe the excluded patent with sufficient specificity that the Editor can tag those elements as being the subject of a Patent Exclusion Notice. It may also briefly summarize the patent claims.
Patent Exclusion Notices will be made available promptly by W3C.
In the event of an exclusion of an Essential Patent Claim, a Patent Advisory Group (PAG) will be formed as described below.
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.
W3C will establish a location that lists all Patent Exclusion Notices. The location will be available even if there are currently no Patent Exclusion Notices. W3C takes no position on the essentiality of any patent claim or the validity of any exclusion notice.
Except as set forth above regarding new Working Group Participants, Patent Review Drafts published prior to Participation are not subject to the exclusion opportunity (nor, by extension to the commitment obligations); once incurred, however, Patent-Licensing Obligations are cumulative and may not be withdrawn.
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 a W3C Member) 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.)
Patent claims excluded in accordance with the provisions for "Patent Exclusions" above must include the information set forth in Section 5.5.3.
Any person may, at their sole option, identify patent claims (including third-party patents) that they believe are Essential Patent Claims with respect to a particular W3C Specification.
At the time a W3C Member Submission [PROCESS, section 10] 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 for any Essential Contribution Claims according to the Patent Licensing Obligation and License Term for any portion of the Member Submission that is subsequently incorporated in a W3C Specification. The W3C Team may acknowledge the Member Submission if the answer to the licensing commitment is either affirmative or negative, and shall not acknowledge the Member Submission if no response is provided.
W3C Standards may be identified as "the W3C [Standard]" so that forks can be distinguished.
W3C Specifications and Patent 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.