How much are they worth?
By dropping a royalty-free exception, the W3C would have to leave out technologies with royalties attached, unless the patent holders agreed to waive them. That could put major intellectual property holders such as Microsoft and IBM in a tough spot: either give away their technology or remove it from consideration as a standard.
"This skirmish is a part of the larger 'IBM and Microsoft vs everybody else war' that's turning the Web services arena into a big political debate," said Jason Bloomberg, an analyst with research firm ZapThink. "Every vendor wants their own specification to become the standard, and IBM and Microsoft have so much clout that that they get their way more often than not. This upsets companies like Sun, who wanted to be a market leader with that kind of clout but missed the boat."
The W3C is hardly alone among standards groups in struggling with the patent question.
One high-profile patent controversy has been Apple's reluctance to include the MPEG-4 specification in its software because of licensing terms. Apple finally released its QuickTime 6 software despite unresolved questions about the license.
Sun has also emerged as a major proponent of unpaid standards, convening a royalty-free standards group called the Liberty Alliance Project to develop online authentication services. In addition, the company held out for royalty-free provisions before joining a high-profile Web security group last month.
"We do not believe in taxing people for use of those standards," Jonathan Schwartz, Sun's software chief, said last month.
Sun worries that a standard will catch on, and once it's an inextricable part of the fabric of the Internet, those with intellectual property connected with it will begin charging for its use. It's analogous to building roads, then putting up tollbooths once the roads are essential.
Not everyone agrees with that analysis.
"We don't believe it would be in the market leaders' best interest--now or in the future--to claim that they deserve licence revenue from SOAP or UDDI or any of the other core Web services standards," said ZapThink's Bloomberg. "The reality is that the core Web services specifications now have enough broad industry momentum to become de facto standards for Web services, regardless of whether they become standards in fact."
Setting a precedent
Still, Microsoft draws frequent barbs for pushing proprietary technology as an alternative to standards and exerting its intellectual property in numerous areas.
Consider 3D graphics. A Microsoft representative said the company has intellectual property that overlaps critical new features coming in version 2.0 of the OpenGL specification for standardising how programs take advantage of graphics acceleration features.
In minutes describing a recent meeting of the OpenGL Architectural Review Board, Microsoft said it had intellectual property for two features, "vertex programming" and "fragment programming," and was willing to license it in exchange for licences to other OpenGL technology.
Though many extensions to OpenGL have come from companies, Microsoft's position is "a big deal, because the Architectural Review Board is an independent committee of volunteers," said Jon Peddie, head of consulting firm Jon Peddie Research. "They're not lawyers; they're scientists and technologists."
Microsoft has been acquiring graphics intellectual property from SGI, Nvidia, ATI Technologies, Intel and others, Peddie said.
"They've just picking it up everywhere," he said. "They have a huge library of intellectual property."
One standards group that has allied itself with the W3C said it, too, is grappling with the issue of exceptions to a royalty-free policy.
"Patents can complicate the standardisation process, but they may bring other benefits," said Tony Parisi, president of MediaMachines and a member of the Web 3D Consortium. "If a company has a vested interest in patents, and that's what it takes to get them involved in the process, you can't just throw them out. But there are open standards and freely accessible technologies--and those factors are colliding with patents. It makes for interesting times."
Stephen Shankland contributed to this report.
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