Frequently Asked Questions (FAQ) about the W3C Patent Policy (2004)

1. What are the primary differences between the Current Patent Practice Note and the W3C Patent Policy?

The primary difference between the "Current Patent Practice Note" (CPP) and the W3C Patent Policy is that the former did not include a licensing obligation and the latter does. The Current Patent Practice Note set expectations that Working Group deliverables should be available for implementation royalty-free, but did not include any licensing requirements on Working Group Participants. The W3C Patent Policy does include licensing requirements. Other new provisions of the W3C Patent Policy also relate to this change, including exclusion handling (section 4), licensing requirements (section 5), and a lighter-weight disclosure model (section 6). In addition, the W3C Patent Policy includes improvements to the exception handling process (section 7) and some definitions (section 8) based on the experience with the Current Patent Practice Note.

2. Which W3C Working Groups will be under the Patent Policy?

Those Working Groups whose charter specifically states that the groups work is governed by the Patent Policy are the only W3C groups under the Policy. The Patent Policy Transition plan describes the process by which existing W3C activities will be transitioned to the new Patent Policy. This transition requires affirmative action of the W3C Advisory Committee and Director in every case.

3. Do participants in other groups such as Interest Groups, Community Groups, and Business Groups have licensing obligations?

Participants in W3C Interest Groups have no licensing obligations with respect to the deliverables of those groups. The charters of Interest Groups may, however, incorporate by reference disclosure rules or definitions from the Patent Policy.

Participants in W3C Community and Business Groups have patent licensing and other obligations as more fully described in the W3C Community Contributor License Agreement (CLA). A party must sign the CLA prior to participating in Community and Business Groups. A summary of the CLA and patent licensing (and other) obligations can be found here: contributor agreements.

4. When can a Working Group participant exclude a patent claim?

During the life of a Working Group (until it closes) under the W3C Patent Policy, certain events on the Recommendation Track create exclusion opportunities for Working Group participants; those events are the publication of First Public Working Drafts and Candidate Recommendations.

Each exclusion opportunity has associated with it both a duration and subject matter in the specification. For the duration of a given exclusion opportunity, a Working Group participant can exclude one or more Essential Claims that is limited to the subject matter in the specification that was not present or apparent in the prior exclusion opportunity. After that opportunity closes, the participant may no longer exclude any Essential Claim with respect to that subject matter in the specification.

At the next exclusion opportunity, a participant may exclude Essential Claims that are limited in scope to any subject matter in the specification available when the opportunity begins that was not present or apparent in the specification for the prior exclusion opportunity, and only prior to the expiration of that exclusion opportunity.

Any participant who joins a Working Group after the close of an exclusion opportunity must exclude any Essential Claims within 24 hours of joining the group. For those participants, exclusion is always with respect to the sum of all subject matter of all previous exclusion opportunities; this corresponds to the subject matter in the specification published at the previous exclusion opportunity.

Consider what this means for a sample Working Group under the W3C Patent Policy:

• The Foobar Working Group (“Foobar WG”) publishes a FOO 1.0 First Public Working Draft that is intended to become a Recommendation.
• The Director issues a Call for Exclusion to the Foobar WG participants. The exclusion opportunity lasts 150 days.
• At approximately 90 days, the Director sends out a reminder of the exclusion opportunity with a pointer to the "FOO 1.0 Reference Draft," i.e., the latest version of the FOO 1.0 Working Draft available at that time. Exclusions are limited in scope to the subject matter in the FOO 1.0 Reference Draft.
• A new participant joins the Foobar WG after the end of the first exclusion opportunity. That new participant must exclude any Essential Claims within 24 hours of joining the Foobar WG, and exclusions are limited in scope to the subject matter in the FOO 1.0 Reference Draft.
• The Foobar WG announces the FOO 1.0 Candidate Recommendation, which begins the second exclusion opportunity. The exclusion opportunity lasts 60 days. Any exclusions are limited in scope to any subject matter in the FOO 1.0 Candidate Recommendation that was not present or apparent in the FOO 1.0 Reference Draft.
• A new participant joins the Foobar WG during the second exclusion opportunity. The new participant must exclude any Essential Claims in the FOO 1.0 Reference Draft within 24 hours of joining the Foobar WG, and the new participant’s exclusions will be limited in scope to the subject matter in the FOO 1.0 Reference Draft. As the exclusion opportunity for the FOO 1.0 Candidate Recommendation is still open, the new participant will have until the close of the exclusion opportunity for the FOO 1.0 Candidate Recommendation to exclude Essential Claims related to that specification; any exclusions are limited in scope to any subject matter in the FOO 1.0 Candidate Recommendation that was not present or apparent in the FOO 1.0 Reference Draft.
• A new participant joins the Foobar WG after the end of the second exclusion opportunity. The new participant must exclude any Essential Claims within 24 hours after joining the Foobar WG, and the scope of the exclusion opportunity is with respect to the subject matter in the FOO 1.0 Candidate Recommendation.
• The Foobar WG makes substantive changes to the FOO 1.0 Candidate Recommendation, thereby creating FOO 1.1 Candidate Recommendation and another exclusion opportunity. The third exclusion opportunity begins with the announcement of the FOO 1.1 Candidate Recommendation and lasts 60 days. Exclusions are limited in scope to the subject matter in the FOO 1.1 Candidate Recommendation that was not present or apparent in the FOO 1.0 Candidate Recommendation. In this case, the Foobar WG must obtain the Director’s approval to publish the FOO 1.1 Candidate Recommendation, except for the removal of features explicitly identified as “at risk."
• A new participant joins the Foobar WG after the close of the third exclusion opportunity. The new participant must exclude any Essential Claims within 24 hours of joining the group, and the scope of the exclusion is limited to the subject matter in the FOO 1.1 Candidate Recommendation.

And so on.

Per section 2 of the W3C Patent Policy Transition Procedure the above policy applies for a given specification in a given Working Group unless all of the following are true:

• The Working Group switches to the W3C Patent Policy after publication of the First Public Working Draft of the specification, and
• The announcement of the switch is made 91 days or more after publication of the FPWD, and
• That specification is not yet a Candidate Recommendation.

In this case, all entities must rejoin the Working Group (and agree to the terms of the W3C Patent Policy) after the Director's announcement that the group has moved to the W3C Patent Policy. Participants have 90 days from the Director's announcement to exclude patent claims. Exclusion is with respect to the latest Working Draft published at the time of the Director's announcement. For the purposes of a transitioning group, this is considered the First Public Working Draft.

When a Working Group moves to the W3C Patent Policy with a document that is a Candidate Recommendation or later, participants have no licensing obligations for that document. However, if the document returns to Working Draft status, licensing obligations would take effect. In this case, the first exclusion opportunity for that document begins with the publication of the Working Draft, and exclusions are with respect to that draft.

5. How does the term "participant" in the Patent Policy relate to the term "participant" in the W3C Process Document?

Section 3.1 of the Patent Policy states:

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.

In the patent policy, "participant" means "a Member organization", "the Team as an organization", or "invited expert". In the Process Document, "participant" always refers to an individual, who may be a Member representative, Team representative, or invited expert. For the purposes of the patent policy, the licensing requirements apply at the organizational level for the Members and Team, and at the individual level for invited experts.

6. How should Working Groups handle contributions from non-participants (e.g., meeting guests or on public lists)?

A W3C Working Group frequently finds itself in the position of receiving reviews and input from other parties who are not participants in the Working Group, including:

• Another W3C Working Group;
• A meeting guest, including an observer during the Technical Plenary Week;
• The general public on a mailing list.

All Participants in a given Working Group have made a commitment to the W3C Patent Policy (in particular, the provisions regarding licensing obligations), but only for the Recommendations of that particular Working Group. In general, other parties have not made the same commitment for those same deliverables, although they MAY make this commitment if they wish. Similarly, W3C may request that they make such a commitment (W3C Group(s) Team Contact(s) manage(S) these contributions). This means that the Working Group should consider very carefully any contribution from a non-Participant before including it in a document intended to become a W3C Recommendation.

To help manage expectations of meeting guests, attendees of joint Working Group meetings, and mailing list subscribers, it is useful to remind them when appropriate of the goals of the W3C Patent Policy.

When a contribution is being considered for actual inclusion in a document intended to become a Recommendation, the Chair should ask the Contributor to disclose any essential claims, and if there are any, the terms under which those claims would be licensed. Lack of a response to this request is a red flag.

In cases where disclosure reveals possible incompatible licensing, the Working Group should either steer away from the Contribution, or attempt to secure W3C Royalty-Free licensing terms. W3C prefers to avoid PAGs where possible.

See question 9 for information about contributed test cases.

7. Can a Working Group have some deliverables under the W3C Patent Policy and others under the CPP?

A Working Group cannot operate under the CPP and produce (some) deliverables under the W3C Patent Policy.

Once a Working Group has adopted the W3C Patent Policy, new deliverables are developed under that policy. Existing deliverables are treated as follows, per section two of the Patent Policy Transition Procedure:

The licensing obligations (sections 3, 4 and 5) of the W3C Patent Policy will apply to any existing Recommendation track document that has not reached Candidate Recommendation as of the date the new charter comes into effect (i.e., the date of the Director's announcement that the charter has been approved). Otherwise, the licensing requirements of the previous patent policy (most recently, the CPP) apply.

8. When is a Working Group considered to be operating under the W3C patent policy?

Once the Director has announced a new or revised Working Group charter that refers to the W3C Patent Policy, the Call for Participation that follows (or accompanies) the announcement is the signal that the group is operating under the policy. Anyone eligible to join the group may do so at any time.

Individuals who were in good standing before that Call for Participation may attend any meetings held within forty-five (45) days of the Call for Participation even if they have not yet formally rejoined the group (i.e., committed to the terms of the charter and patent policy).

This information was sent to the W3C Advisory Committee (Member-only link) in April 2005.

9. Does the W3C Patent Policy apply to test cases submitted to W3C as part of developing a test suite for a Recommendation?

This question is addressed by the Policies for Contribution of Test Cases to W3C.

10. Do participants in a Working Group under the W3C Patent Policy have licensing obligations for all Working Drafts produced by the group?

Participants in a Working Group under the W3C Patent Policy have licensing obligations for a Working Draft published by the group unless any of the following is true:

• W3C terminates the work before the Working Draft becomes a Recommendation (e.g., the Working Group closes before completing work). In this case, Participants are released from their licensing obligations. When work terminates prior to Recommendation, W3C should publish this work as a Working Group Note.
• the Working Group charter states that the deliverable is not intended to become a W3C Recommendation (as is done for requirements documents, for example). If for any reason W3C decides that the work should indeed advance to Recommendation, licensing obligations will take effect and there will be an exclusion opportunity for Working Group Participants; the currently available draft will be treated as a First Public Working Draft under the W3C Patent Policy.
• the Working Group charter or Working Draft itself states that the deliverable is informative only (e.g., a primer or tutorial); see also question 12.

11. Do Participants in a Working Group have licensing obligations with respect to Recommendations produced by groups in which they are not participating?

No. Section 3.1 of the Patent Policy states (emphasis added):

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.

Recall, however, that implementers (whether or not they participated in the Working Group that produced the Recommendation) may incur licensing obligations through reciprocal licensing terms as permitted by section 5 of the Patent Policy.

Please note that Participants in one W3C group may have disclosure obligations related to work in other W3C groups; see section 6 of the Patent Policy as well as question 19 and question 20.

12. Does a Recommendation that is entirely informative have any associated licensing obligations?

According to the W3C Patent Policy, informative material is not essential to implementing a Recommendation and is therefore not subject to the licensing requirements of the policy. This is the case whether that material is a single section of a document or an entire document (such as a primer or guide) that is part of a multi-document Recommendation. Section 8.2 of the Patent Policy states:

The following are expressly excluded from and shall not be deemed to constitute Essential Claims:...

2. ...claims which would be infringed only by ... portions of an implementation that are not specified in the normative portions of the Recommendation.

Section 8.3 goes on to say that, "For purposes of this definition, the normative portions of the Recommendation shall be deemed to include only architectural and interoperability requirements."

W3C's QA Specification Guidelines, section C. provide guidance about identifying the normative and informative portions of a document.

13. Can the Chair invite a guest (i.e., non-participant) to attend a face-to-face or remote meeting of a Working Group under the Patent Policy?

Yes. However, see question 6 for related issues about contributions from non-participants, including meeting guests.

See also section 3.2 of the Process Document, which discusses general meeting requirements.

14. Can non-participants subscribe to a mailing list of a Working Group under the Patent Policy?

Whether a group is or is not under the W3C Patent Policy has no impact on who may or may not subscribe to the group's mailing lists. For example, anyone with Member access may read any Member-visible mailing list archive. See question 6 for related issues about contributions from non-participants, including individuals who provide feedback on a group mailing list.

15. What obligations do W3C Fellows have in a Working Group under the policy?

When a W3C Fellow, who is an employee of a W3C Member, participates in a Working Group, the W3C Member has the obligations for Member Participants described in the Patent Policy. W3C Fellows must be nominated by their Advisory Committee Representative in order to be able to participate in a Working Group.

16. May I specify my own licensing terms upon joining a W3C Working Group?

No. Section 5 of the Patent Policy lists the licensing terms required by this policy. Organizations participating in a W3C Working Group under the Patent Policy may not make individual modifications to or departures from the licensing requirements spelled out in the Policy. An important efficiency gained with the Patent Policy is avoidance numerous one-off licensing statements. If each participant proposed its own policy then other Working Group Participants and implementers would have to invest extra time and legal expertise to review individually-crafted licensing language. Also, the W3C Team would be put in the position of making possible subjective evaluations of individual licensing statements. In order to avoid this complex legal analysis, the Policy requires that each entity joining a W3C Working Group makes a choice between two straightforward options: 'we agree' or 'we don't agree' to the terms of the Patent Policy. Organizations offering licenses meeting the W3C Royalty-Free requirements may point to the specific contact information and entity-specific license terms, as provided in Section 5 of the Policy.

17. What are TAG participant licensing obligations?

Per the [proposed] TAG charter [revision of Nov 2004], individuals in the TAG participate as Invited Experts with respect to the Patent Policy, even when they are Member employees.

Licensing obligations for TAG participants only extend to those claims over which the individual exercises control (per section 3.4 of the Patent Policy). The individual's employer has no licensing obligation by virtue of the individual's participation as an Invited Expert in the group in question.

18. What are TAG participant disclosure obligations?

Disclosure obligations for TAG participants are those of any other W3C participant (as described in section 6.1 of the policy) except with respect to the definition of third-party patents. Per section 6.7 states that:

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.

For TAG participants who are employees of a Member organization, patents controlled by the Member organization are not considered third-party patents. Thus, the scope of the individual's disclosure obligation includes them.

19. Does a disclosure request obligate an individual to read the specification to satisfy the individual's disclosure obligation?

No. Section 6.1 of the W3C Patent Policy states:

Disclosure is required when [...] 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.

The appearance of such a disclosure request in a document status section section does not obligate any individual to read or become informed of the contents of the document. However, if a person who receives such a request is aware of claims on a technology and is, through whatever means (e.g., as a result of reading the document or having a conversation), sufficiently aware of the contents of the W3C document to believe that a claim is essential, then that person has the obligation to disclose that information. Recall also that per section 6.7, no patent search is required.

20. Are duplicate disclosures required?

Duplicate disclosures are not required for a given patent claim/specification pair. Per section 6.2 of the Patent Policy (emphasis added):

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.

Parties make the W3C RF licensing commitment with respect to a patent claim/specification pair. Once a disclosure has been made with respect to a given claim/specification pair, no further disclosures are required, by anyone, for that claim/specification pair. Also per section 6.7, once an RF licensing commitment has been made to a given claim/specification pair, no disclosures are required, by anyone, for that claim/specification pair. If the same patent claim bears on another specification, disclosure obligations are not thereby discharged; each claim/specification pair is treated independently.

21. Suppose A and B are Related W3C Members and one of the organizations is a group Participant. What are the licensing obligations on the other Member?

That depends on the nature of their relation (see section 2.1.2 of the Process Document for the various relations possible). The Patent Policy does not mention Related Members explicitly but does state in section 3.1:

This [licensing] 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.

Therefore, if Member A (related to Member B) joins a Working Group, then the licensing commitment would extend to patents held by Member B to the extent that the relationship between the related members is not a barrier to such licensing. Of course, regardless of the licensing relationship between the related Members, Member A continues to have a disclosure the obligations described in section 6 of the Patent Policy.

22. Can an individual join W3C (as an Affiliate Member) and participate in a Working Group even when that individual is also an employee of another W3C Member?

Yes. W3C Members must disclose Related Member status per section 2.1.2 of the Process Document. In cases where participation in a group by one of a set of Related Members may create the appearance of working around licensing obligations, the Director may decline to allow such participation:

In exceptional circumstances (e.g., situations that might jeopardize the progress of a group or create a conflict of interest), the Director MAY decline to allow an individual designated by an Advisory Committee representative to participate in a group. (Section 3.1.2 of the Process Document.)

23. Can a W3C Member limit the licensing obligation by having an employee participate as an Invited Expert in a Working Group?

In general, no. Prior to the adoption of the W3C Patent Policy, in some cases an individual employed by a W3C Member might be invited to participate in a Working Group as an Invited Expert rather than as a formal Member representative. W3C no longer follows this practice for two reasons:

• Precisely because it would be unfair to other W3C Members and be contrary to the goals of the Patent Policy to limit licensing obligations of the patent policy.
• The W3C Process Document has been revised so that this practice is no longer necessary. In the past, Chairs of some W3C groups invited Member employees to participate in order to work around chartered restrictions in the number of participants from one Member organization. These chartered restrictions had been adopted in order to ensure balanced representation of views in formal votes (when such votes were required). Changes to the Process Document such as limiting the number of formal votes per organization have made it unnecessary to "work around the charter", and thus the practice described has become unnecessary.

24. Can a Working Group publish a new draft of a Recommendation Track document during an open exclusion opportunity?

Yes, in most cases. For instance, suppose we are talking about an exclusion opportunity that begins with the publication of a Candidate Recommendation. Although the exclusion opportunity lasts 60 days, the Working Group may publish additional documents, including Candidate Recommendations during those 60 days. Of course, other Process Document requirements are in force as well, so if the Working Group makes substantive changes, the document will return to Candidate Recommendation status for additional work.

The W3C Team will not, however, start a Proposed Recommendation review period until all current exclusion opportunities for a given specification have ended.

In some cases, two exclusion opportunities for the same specification may be open in parallel. This is possible since exclusion opportunities are mutually exclusive with respect to reference material.

25. Can a Working Group end an exclusion opportunity sooner than scheduled?

No.

The previous answer to this question proved unworkable in practice.

26. Does my licensing obligation in a given group extend to future patents I may own?

Yes. Section 3.1 of the W3C Patent Policy states:

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.

Note that if this were not the case, one could easily subvert the intention of the policy by, for example, joining a Working Group and filing for a patent the following day.

27. What action is required by a Participant when a Working Group under the Patent Policy is rechartered?

A Working Group under the Patent Policy whose charter is renewed is handled much like a group that has just made the transition to the W3C Patent Policy (as described in the Patent Policy Transition Procedure). In response to the Call for Participation in the rechartered group, current Participants are required to re-join the group unless the renewed charter was merely extended, or the only changes are non-substantive (e.g., clarifications, editorial repairs, minor error corrections, change of Team Contact, etc.). Re-joining the group, when required, implies a renewed commitment to the terms of the charter and the Patent Policy.

When re-joining is required, the Call for Participation begins a grace period (see question 8) during which time current Participants may attend meetings (teleconferences and face-to-face meetings) even if they have not yet re-joined the group. After the grace period, ongoing participation (including meeting attendance and voting) is only permitted for those who have re-joined the group.

When re-joining is required, Advisory Committee Representatives of current Participants are not required to "re-nominate" their representatives to the group.

28. Can a Working Group publish a version 2.1 of a Recommendation that defines conformance by reference to the 2.0 Recommendation, plus a few new features defined in 2.1?

In general, no. W3C experience shows that this sort of "differential" specification can be difficult to read and implement. W3C therefore prefers to publish self-contained specifications.

For any specification, a Working Group makes decisions about what to include and what to reference based on many factors, such as the expected length of the document and the stability of referenced materials. A typical specification does include some references to external material, and this has W3C Patent Policy implications. Per section 8.2 of the W3C Patent Policy, technology incorporated by reference is "expressly excluded from and shall not be deemed to constitute Essential Claims." The commitments of the Participants who authored the specification refer to the text in the specification and stop short of the external references. Creating a self-contained specification therefore helps to reduce confusion about licensing commitments as part of improving overall document usability.

29. Can a Working Group publish a new draft of a Recommendation Track document while a PAG is discussing the document?

Yes, in most cases. Section 7.1 of the Patent Policy states:

During the time that the PAG is operating, the Working Group may continue its technical work within the bounds of its charter.

The W3C Director will not generally start a Proposed Recommendation review period until after any PAG discussing the document has issued its report.

30. When a Working Group splits a Recommendation Track document into several pieces, what are the Patent Policy implications?

First, Working Group Participant patent policy commitments apply to all the chartered Recommendation Track documents published by the group, including the new set of documents.

Second, If there were no disclosures or exclusions associated with the single document prior to the split, there are no other Patent Policy implications. If there were disclosures or exclusions prior to the split, then they are no longer relevant with respect to the "abandoned" document. They may, however, be relevant to one or more of the new documents, as follows: a previous disclosure/exclusion applies to a new document unless, within 30 days of publication of that new document, the party that made the disclosure/exclusion declares that it does not apply.

The "default mode" of carrying all disclosures/exclusions forward for all derived documents is appropriate given that the W3C Patent Policy does not require that a disclosure/exclusion refer to a specific part of a specification. It is thus not practical to "track" how a disclosure/exclusion should migrate to a new set of documents in the absence of more information from the party that made the disclosure/exclusion.

31. Organization A is my principal employer, but I represent organization B in a Working Group operating under the W3C Patent Policy. What are the licensing obligations for A and B?

Member B has the standard obligations of a Member participating in a Working Group under the Patent Policy. W3C also requires in practice that organization A — whether or not A is a W3C Member — offer W3C Royalty Free licensing commitments for that Working Group.

32. Can a W3C Recommendation normatively refer to technology developed outside W3C with licensing terms that differ from those of the W3C Patent Policy?

Yes. W3C Recommendations may include normative references to standards or technologies developed outside of W3C. However, the Working Group should keep in mind the importance of royalty-free implementations of Web standards. In the event it becomes clear that the licensing status of those externally-developed technologies could become a barrier to implementation of the technology according to the W3C Royalty-Free (RF) Licensing Requirements, W3C may choose not to publish the document or may launch a PAG.

33. When a specification is jointly authored by several Working Groups, what are the licensing obligations of the Participants in those groups?

The W3C Patent Policy does not explicitly address specifications that are jointly authored by several Working Groups. W3C does, in some cases, charter more than one group to work on the same specification, and this is not forbidden by the Patent Policy. By extension of the policy, all Participants in any Working Group chartered to develop a specification have the same patent policy obligations with respect to that specification. The Patent Policy Transition Procedure determines whether the governing patent policy is the W3C Patent Policy or the CPP. (The case of joint work on a CPP specification is unlikely, but theoretically possible in the case of joint work on a Proposed Edited Recommendation).

See question 6 for the situation where coordinating groups are not all chartered to work on a given deliverable.

34. Must an exclusion of patent claims under Section 4 of the Patent Policy include an assertion that the patent claims being excluded are essential to the specification against which the exclusion is being made?

In order to exclude a patent claim (see Section 4), excluders should take reasonable steps to exclude only those patent claims that they reasonably believe could become essential to the final Recommendation. However, per Section 6.7, the excluding organization is not required to conduct a patent search, nor does the exclusion constitute a final determination that the patent claim(s) will become essential to the final Recommendation. Exclusions made early in the development of a Recommendation may be premised on the likelihood that a patent will end up being essential to the final Recommendation, but that the excluding organization cannot make firm assertions in this regard.

35. What is the consequence of publishing a Candidate Recommendation within 90 days after the publication of the First Public Working Draft of the same document?

The first exclusion opportunity subsumes the second one for the following reasons.

A first exclusion opportunity begins with publication of a First Public Working Draft and ends 150 days later. Per the W3C Patent Policy, the reference draft for exclusions during that period is the one available at 90 days. In this scenario, the reference draft is the Candidate Recommendation.

A second exclusion opportunity is triggered by publication of a Candidate Recommendation and ends 60 days later. Exclusions are over material not in the reference draft (per section 4.1 of the Patent Policy). Thus, when a Candidate Recommendation is also the reference draft of the first exclusion opportunity, the second exclusion opportunity is entirely subsumed.

36. Can an exclusion be withdrawn?

Yes. An organization may withdraw a exclusion at any time, even after publication of the Recommendation concerned.

If an organization has made an exclusion for a Recommendation and then modified its internal patent policy strategy, it is useful for the organization to review the exclusion and consider withdrawing it. This tends to give the community more confidence about being able to implement the standard on terms consistent with the W3C Royalty Free Licence.

37. What licensing obligations apply to second (and later) editions of a Recommendation?

W3C has defined a Process for revising Recommendations to fix broken links and invalid markup, make editorial clarifications, and make substantive corrections provided they introduce no new features. The process involves community review of a "Proposed Edited Recommendation" that is subsequently published as a new edition of the same Recommendation. Licensing commitments made to the original Recommendation will apply to new editions that result from this process.

In the unlikely event that new features improperly creep in, there are procedures for challenging the document's status. New features would not, in any case, be covered by the original licensing obligation.

38. In what ways can a patent holder disclosing and/or excluding an essential patent claim cooperate with the Patent Advisory Group (PAG)?

The patent holder can cooperate by facilitating the creation of a specification which conforms to W3C's patent policy, helping the Working Group (and the Patent Advisory Group if one exists) understand how to proceed. To do so, the excluder can:

• Indicate with precision which features in a specification may be covered by the claim, and/or
• Discuss with the Working Group or the PAG possible changes to the specification which might avoid the claim.

While this entry does not change the requirements stated in this Patent Policy itself, this kind of cooperation could result in the creation of an RF specification in an area that is important to the excluder. The patent holder may also derive positive publicity and good will from contributing to, rather than preventing, the development of open Web standards.

39. When Member A, which participates in a Working Group, is acquired by Member B and Member A ceases to exist as an independent entity, what is the impact on licensing commitments?

The Patent Policy commitment of Member A is given for the lifetime of the patent as described in section 3 and section 5 of the Patent Policy. Consequently, Member B inherits Member A's Royalty-Free licensing commitments.

Member B is not considered a Working Group Participant by virtue of its acquisition of Member A. Thus, unless Member B joins the Working Group (or is already participating), it does not have any additional licensing obligations as of the termination of Member A's contract with W3C. If Member B joins the Working Group, other sections of the Patent Policy govern new licensing commitments and exclusion opportunities.

40. What are the considerations and steps for forming a Patent Advisory Group (PAG)?

Procedures for Launching a Patent Advisory Group describes the operational considerations and steps for forming a PAG when an exception occurs under the W3C Patent Policy.

41. Our Working Group is chartered to define FooML 1.1 so that it is a superset of FooML 1.0. How should the Working Group write its Specification to take advantage of 1.0 licensing commitments? How should the WG assure that 1.1 participants are bound to W3C RF licensing commitments over the entirety of FooML 1.1?

If the FooML 1.1 specification defines its compliance with FooML 1.0 by inclusion of the text of the FooML 1.0 specification (either verbatim or with editorial corrections), then the commitment from participants in the FooML 1.1 Working Group extends to the included 1.0 text, not just the new 1.1 text.

If an implementation of FooML 1.1 is also an implementation of FooML 1.0, then that implementations of FooML 1.1 can also benefit from the license commitments made by participants in the Working Group that developed FooML 1.0.

Note that the licensing obligations for participants in the FooML 1.0 Working Group do not change at all from what they were at the time FooML 1.0 was issued, and those commitments are limited to compliance with FooML 1.0. Therefore, if the FooML 1.1 Working Group would like implementers of FooML 1.1 to benefit from the license commitments that have been made by participants in the Working Group that developed FooML 1.0, then the FooML 1.1 Working Group should exercise caution to make sure that implementations of FooML 1.1 will also be implementations of FooML 1.0.

42. If a Working Group closes before a given Recommendation-track specification in its charter becomes a Recommendation, what happens to the licensing obligations of the Working Group Participants with respect to that document?

The public offers of Royalty-Free licensing made by W3C Working Group Participants are made only for a specific Working Group creating a specific deliverable. Since W3C Patent Policy obligations are tied to approval of the final Recommendation, patent licensing commitments made under the Patent Policy apply only to completed Recommendations. Unfinished specifications do not carry with them the W3C Royalty-Free licensing obligations.

43. If a First Public Working Draft is also a Candidate Recommendation, what is the duration of the exclusion opportunity?

150 days. The Patent Policy specifies 150 days as the duration of the exclusion opportunity at First Public Working Draft, and 60 days at Candidate Recommendation. If the two coincide, the larger (more conservative) duration of the two is respected. See question 25 for information about ending an exclusion opportunity early.

44. Is there an exclusion period for a Candidate Recommendation that has no new text since the previous reference draft?

No (per section 4.1, which indicates that an exclusion period is only necessary "if material new subject matter is added").

45. Does an implementation based on a translation of a W3C Recommendation benefit from W3C RF patent commitments?

The original English version of the Recommendation is authoritative, and the patent commitments apply only to implementations that conform to that original version. The role of a translation is to facilitate the comprehension of the authoritative Recommendation, not to replace or modify it.

46. If a Member discloses a patent or application under the terms of section 6, does that necessarily mean that it has agreed to or is bound by any licensing obligation?

No. Under the W3C Patent Policy, Members have licensing obligations only with respect to claims that are Essential to a Recommendation generated by a particular Working Group in which the Member is a participant. (§3.1) In addition, patents or applications that are disclosed may or may not ultimately prove to contain claims that are actually Essential to the final W3C Recommendation (see Process Document §7.1.2), and the licensing obligation exists only as to claims that are Essential to a Recommendation (see §3.3, §8.1)

47. If a Member agrees prospectively to license all claims that may be Essential to the final form of a particular W3C Recommendation, does the Member still have any obligation under §6 to make disclosures, as described in §6.1 and §§6.4-6, with respect to that Recommendation or any Working Draft, Candidate Recommendation, or Proposed Recommendation generated in the course of developing that Recommendation?

No. In this circumstance the Member is exempt from the disclosure obligation by the terms of §6.2.

48. If an individual in a Member organization receives a disclosure request and does not have actual knowledge, does he (or the Member with which he is affiliated) have any obligation to advise other individuals associated with the same Member of the disclosure request?

No. Section §6.1 states:

"Disclosure is required when BOTH of the following are true:

1. an individual in a Member organization receives a disclosure request as described in section 6.3; and
2. 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."

See also exemptions (§6.2).

49. What licensing obligations apply to Amended Recommendations?

W3C has defined a process for amending Recommendations to fix broken links and invalid markup, make editorial clarifications, and make substantive corrections provided they introduce no new features. The process involves community review of an "Amended Recommendation" that is subsequently published as a new edition of the same Recommendation. Licensing commitments made to the content in the original Recommendation apply to such content included in new editions that result from this process; no licensing commitments apply to any claims rendered Essential Claims by the amendment.