Saturday, July 9, 2011

Apple's latest patent foe: the World Wide Web Consortium (W3C)

It's not like Apple needs more hassle on the patent front. Think of its "global war" with Samsung (eight venues, six countries, three continents), its disputes with HTC and Motorola, the unresolved Kodak problem, Lodsys's lawsuit and assertions against app developers, and a few dozen trolls, one of whom was just handed a jury verdict worth $8 million for the infringement of two playlist patents.

And now the vaunted W3C (World Wide Web Consortium), which has hundreds of corporate members, has launched a frontal assault on one of Apple's patents and one of its patent applications with a public call for prior art.

Hat tip to Anant Puranik, who pointed me (via Twitter) to this informative post on his PatentsInd blog, which covers patent matters in India.

The related announcement by the W3C

Let me quickly copy the text of the W3C announcement. Don't worry if some of it is not immediately clear to you because this is related to how standardization bodies in general and the W3C in particular operate. I'll explain further below what this is all about. Here's the text:

This is a public call for prior art on patent Application No. 11/432,295 and on Patent 7,743,336. The W3C seeks information about access control systems available before October 2005 and content distribution systems before April 2006 that offer a viable solution that may apply to the use of access requests policy in Widgets. People who wish to provide feedback should refer to the call for prior art for more information. On 13 November 2009, pursuant to its rights under W3C's Patent Policy, Apple, Inc. disclosed US Published Patent Application No. 11/432,295 and US Published Patent Application 11/409,276 and claimed that it applies to the Web Applications WG's Widget Access Request Policy specification. Apple excluded all claims from the W3C Royalty-Free License commitment of the W3C Patent Policy given by Participants of the Web Applications Working Group. In accordance with the exception procedures of the Patent Policy, W3C launched a Patent Advisory Group (PAG) to determine possible solutions. The PAG has advised W3C to issue this call for prior art.

The W3C has a rigid "royalty-free" licensing policy. If patents are essential to its standards (meaning you can't implement the given standard in any reasonable way without infringing such a patent), they must be made available "to all, worldwide, whether or not they are W3C Members" on a royalty-free basis. The W3C allows patent holders to impose certain conditions, but generally, if you make a patent available to a W3C standard, you have to give up most of your rights. By contrast, most standard-setting organizations operate under a so-called FRAND (fair, reasonable and non-discriminatory) -- or just RAND, without explicitly stating "fair" -- regime. FRAND commitments ensure the availability of patents but patent holders still reserve far more rights than under the W3C's policy.

Apple wants to be able to sue over those patents

Apple is a member of the W3C and, in that role, disclosed the fact that it holds one U.S. patent and one U.S. patent application that Apple believes read on the W3c's "Widget Access Requests Policy" specification. At the same time, Apple exercised its right to withhold those intellectual property rights. In other words, Apple refuses to make those rights available on the W3C's liberal terms. Simply put, Apple doesn't want to be restricted in any way and may want to assert those patents in its various lawsuits.

This means the W3C can't formally adopt the "infringing" specification because its rules require patent-free or at least royalty-free standards. For now the Widget Access Request Policy is just a candidate recommendation, not a final specification yet.

If a patent holder refuses to accept the W3C's terms, the W3C may try to have that patent invalidated (or a patent application rejected). If that effort succeeds, the specification is, again, patent-unencumbered. If not, the W3C can still evaluate possible workarounds or, if there's no workaround, give up on a standard.

In this case, the W3C hopes to do away with Apple's relevant patent and patent application. It's an unpleasant situation for the W3C to have to confront one of its members, especially such a large and powerful one, but sometimes this can't be avoided.

Another W3C patent fight: video codecs

This isn't the only issue in connection with which Apple favors the rights of patent holders over unencumbered standards: the W3C's rigid "royalty-free" policy is also a big problem in the debate over video codecs -- MPEG LA vs. the Google-led WebM. MPEG LA is a licensing agency for many patent holders, not to be confused with the MPEG (Moving Picture Experts Group) standard-setting organization. MPEG has plans for a royalty-free video codec specification. The market-leading AVC/H.264 standard comes with royalty obligations except for limited fields of use. MPEG LA collects royalties on behalf of the holders of many (possibly all) patents essential to AVC/H.264. Google and its allies would like to turn WebM into a W3C standard (in fact, into the default video codec under HTML 5), claiming that it's "royalty-free".

However, Apple and other major players oppose Google's proposal. There's serious doubt that it's truly unencumbered by third-party patents. Since there are now 47 Android-related patent infringement lawsuits going on by my count and frequent reports of patent holders (such as Oracle) demanding or actually (such as Microsoft) collecting royalties from Android device makers, Google has lost its credibility whenever it claims that its "open source" technologies are truly unencumbered.

With the strategic importance that patents have now (also evidenced by the $4.5 billion paid for Nortel's patent portfolio), I guess the W3C is going to find it increasingly difficult to develop standards under its policy. There's still going to be some interest among industry players in the W3C's ability to develop its standards, but a company like Apple is certainly not the most generous contributor of patents to "free" standards, to put it mildly. And when you're embroiled in so much litigation, it's probably a bad time to ask you to give up rights that you may want to assert against the likes of Samsung and Motorola. That's the problem.

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