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Of the XPointer Patent [was Re: (Second) Last Call for XPointer 1.0]>

• From: Uche Ogbuji <uche.ogbuji@f...>
• To: Elliotte Rusty Harold <elharo@m...>
• Date: Thu, 11 Jan 2001 10:39:49 -0700 (MST)

> I think this is particularly offensive because Eve L. Maler, a Sun
> employee, serves as co-chair of the XML Linking Working Group and a
> co-editor of the XPointer specification. As usual, Sun wants to use this
> as a club to lock implementers and users into a licensing agreement that
> goes beyond what Sun and the W3C could otherwise demand. For instance
> they want to force you to grant your own modifications and experiments
> back to the W3C.
>
> The specific patent is United States Patent No. 5,659,729, Method and
> system for implementing hypertext scroll attributes, issued to Jakob
> Nielsen in 1997.

[snip]

> It's very questionable whether this is truly an original invention with
> no prior art. HyperCard and Xanadu both had capabilities like this. It's
> also questionable whether the patent as written really applies to
> XPointer. For instance, the patent mandates a certain behavior of
> browsers. XPointer doesn't. I also think that the proposed "XPointer
> patent terms and conditions" are unenforceable as currently published.
>
> I recommend complete rejection of this specification until such time as
> Sun's patent can be dealt with more reasonably.

As much as I think XPointer is useful, I have to agree completely with
Eliotte's principle here.

The patent is clearly without merit, and it's important to scrutinize
Sun's role as ostensible cavalier in donating the benefit of such patent
to the W3C.

First of all, it's dangerous politics within the W3C.  By granting what
its people will eagerly deem "valuable" intellectual property to the W3C,
Sun exacts some leverage which it might decide to apply elsewhere in some
critical decision-making process.

Furthermore, it is dangerous politics on a greater scale.  By gaining
hegemony over a natural and useful function of hypertext systems, the W3C
significantly enhances its authority over such systems to the possible
detriment of other efforts.

I don't mean to make this sound like Borgian manipulation.  In fact, I'm
pretty sure Sun has good intentions here.  It looks as if they are trying
to eliminate the possibility of "embrace/extend/extinguish".  The open
source community has long discussed the measure of "white hat" patents.
But this idea is not mature, and I believe Sun has made a few
mistakes in its attempt to do the right thing once it claimed a
frivolous patent.

In particular, Sun's "license" is rather problematic, even to open-source
developers.

IANAL -- IDEPOOTV, but I hope my reading comprehension is up to snuff.

Early on:

"Modification" shall mean programming code, including interfaces,
developed by or for You for use in an implementation of the syntax of the
Xpointer Specification or for use in combination with an implementation of
the XPointer Specification, that extends, enhances, alters, otherwise
changes or is derived from the XPointer Specification.

Oh boy.  So since 4XPointer uses 4XPath, and 4XPath comes with a set of
extension functions (as do most XPath implementations), I think this may
end up applying to me, even though I have met Eve Maler, she sounded very
encouraging of our implementation efforts, and I don't believe her team
has any willful intent of obstructing that.

"3.  You agree to provide documentation of any Modification to W3C no
later than the first date on which such Modification is made available to
others, including but not limited to the first date on which such
Modification is made available to others through alpha distributions or
distributions  under obligations of confidentiality (the Available Date)."

Now couldn't this mean that every time we release 4XPointer we have to
seek out a W3C rep to let them know?  Couldn't it also mean that I
have to send them a notification every night, when a CVS snapshot is
automatically prepped for download?

"4.  The term of this Agreement shall begin on the date that You download
or otherwise receive the XPointer Specification and shall extend through
the last date on which a Patent expires."

Nasty.  A stealth click-agreement.

http://www.w3.org/TR/2001/WD-xptr-20010108/

Shows no warning that the reader has just been ostensibly nabbed according
to some  contract that was posted to a mailing list somewhere.  This sort
of entrapment is something I don't even wish on the malicious
embracer/extenders.

And I did check the IP links from the line

"W3C liability, trademark, document use and software licensing rules
apply."

I think some clarification of the licensing terms would help those whom I
guess it's designed to protect.  I think also that it needs to be more
clear what one is getting into just by viewing the XPointer spec.  Then
the W3C should clarify that they don't intend to bully the developers of
competing hypertext systems using this patent.

But all this is not to admit tha the patent is valid.  I think it's
rot, but then it's no more rot than almost every software and
business-process patent in existence.  I do give Sun some credit for
trying to do the right thing.  If they can get it right, it might be the
first significant "white hat" patent in the books.


-- 
Uche Ogbuji                               Principal Consultant
uche.ogbuji@f...               +1 303 583 9900 x 101
Fourthought, Inc.                         http://Fourthought.com
4735 East Walnut St, Ste. C, Boulder, CO 80301-2537, USA
Software-engineering, knowledge-management, XML, CORBA, Linux, Python

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