Is there a patent on XML itself?

[Grant Robertson]

If the W3C created the XML standard, did they apply for a patent on it?
The only thing I can find on the W3C site is their policy about freely
licensing any patented technology related to a standard.

I know all about Microsoft trying to patent every possible thing you
could do with an XML file. I don't really want to go off on that tangent.
Right now, I am just trying to figure out if there is a patent on the XML
standard itself and, if so, who owns it.

 

[Peter Flynn]

If the W3C created the XML standard, did they apply for a patent on it?
The only thing I can find on the W3C site is their policy about freely
licensing any patented technology related to a standard.

I know all about Microsoft trying to patent every possible thing you
could do with an XML file. I don't really want to go off on that tangent.
Right now, I am just trying to figure out if there is a patent on the XML
standard itself and, if so, who owns it.

XML (the concept, ie the standard) is neither software nor hardware, and
as far as I know it is therefore not patentable. I know that won't stop
the USPO allowing someone to patent it, but we'll cross that bridge when
we come to it.

///Peter

 

[Grant Robertson]

XML (the concept, ie the standard) is neither software nor hardware, and
as far as I know it is therefore not patentable. I know that won't stop
the USPO allowing someone to patent it, but we'll cross that bridge when
we come to it.

The Open Document Format standard is neither software or hardware and it
has a patent. So does Dell's business process. There is no requirement
that something be software or hardware for there to be a patent.

I'm not looking for arguments or speculation as to whether it logically
should or should not have a patent. I just want to know if anyone knows
for sure whether it does or does not have a patent.

Thank you.

 

[Peter Flynn]

The Open Document Format standard is neither software or hardware and it
has a patent. So does Dell's business process. There is no requirement
that something be software or hardware for there to be a patent.

Sorry, my fault: I was just doing something else with software patents
when I read the post, and I meant XML is not patentable as a piece of
software. You can indeed patent anything you like in the USA, regardless
of whether it makes sense to or not. Patents can also be used
defensively, to prevent others less scrupulous from patenting ideas not
theirs.

I'm not looking for arguments or speculation as to whether it logically
should or should not have a patent. I just want to know if anyone knows
for sure whether it does or does not have a patent.

I've never heard of one, but in the current circumstances I don't think
anyone is in a position to certify that it does or does not have a patent.

///Peter

 

[Grant Robertson]

I meant XML is not patentable as a piece of
software. You can indeed patent anything you like in the USA, regardless
of whether it makes sense to or not. Patents can also be used
defensively, to prevent others less scrupulous from patenting ideas not
theirs.

That is the very reason I am asking. I am inventing an XML standard and
am trying to decide if I should go to the trouble and expense of
patenting it. My main reason for doing so would be to prevent the likes
of Microsoft from "embracing and extending" my standard in order to kill
it or steal it.

I've never heard of one, but in the current circumstances I don't think
anyone is in a position to certify that it does or does not have a patent.

Thanks for the info. Something tells me that there wouldn't be such a
brouhaha over who owns patents to XML if W3C had crafted a well designed
patent when they first invented XML years ago.

 

[Simon Brooke]

That is the very reason I am asking. I am inventing an XML standard and
am trying to decide if I should go to the trouble and expense of
patenting it.

Absolutely not - in your own interest. Before the Web, there were dozens of
perfectly good distributed hypertext systems. Only problem - they were all
proprietary and so none of them got traction. If you overprotect
your 'invention', no-one will use it.

People think Tim Berners Lee was foolish for 'giving away' the Web. But all
the inventors of the Web's predecessors are now marginal or out of
business all together, whereas Sir Tim has his knighthood, a great deal of
respect and influence in the community, and a very nice salary, thank you.

It's better to have a little bit of something very big than the whole of
something very small.

My main reason for doing so would be to prevent the likes
of Microsoft from "embracing and extending" my standard in order to kill
it or steal it.

They'll only try if it gets traction - and if you patent it it will never
get traction.

Thanks for the info. Something tells me that there wouldn't be such a
brouhaha over who owns patents to XML if W3C had crafted a well designed
patent when they first invented XML years ago.

But no-one would be using XML if they had. XML is only a prolix syntax for
S-Expressions, and S-Expressions, though very flexible, are not the only
flexible expression of data. If XML were encumbered with patents, we'd all
be using something different.

 

[Grant Robertson]

Absolutely not - in your own interest. Before the Web, there were dozens of
perfectly good distributed hypertext systems. Only problem - they were all
proprietary and so none of them got traction. If you overprotect
your 'invention', no-one will use it.

I'm sorry, I didn't mention that I also intend to license the standard
freely in accordance with the W3C's patent policy. The only restriction I
would place on the license would be that no one could extend the standard
without going through the standards body. No one would be allowed to
"embrace and extend" for proprietary purposes as Microsoft is fond of
doing.

Here are some articles that deal with the issue of patents and standards:

http://www-03.ibm.com/developerworks/blogs/page/BobSutor?
entry=grading_open_standards_what_does

http://stephesblog.blogs.com/my_weblog/2005/09/open_standards_.html


I agree that HTML probably wouldn't have taken off like it did if there
were restrictions on how it could be extended. But then HTML was pretty
simple and rather lame back then. Most people had never heard of a markup
language at the time. That was then, this is now. Markup languages are
big business and there are lots of sharks and submarines in the waters
looking to score big by claiming rights to something that isn't properly
protected. The Open Document Format standard is patented by Sun with a
free license and most of the rest of the world is working on adopting it.
But since it is protected, Microsoft can't "embrace and extend" it so
they have to resort to issuing a competing standard that no one is paying
attention to.

So, I believe the factors that currently foster adoption are:

1) Free, as in beer.

2) Flexibility.

3) Controlled by an independent, non-commercial standards body.

4) Protected from unauthorized, proprietary "extension."

People think Tim Berners Lee was foolish for 'giving away' the Web. But all
the inventors of the Web's predecessors are now marginal or out of
business all together, whereas Sir Tim has his knighthood, a great deal of
respect and influence in the community, and a very nice salary, thank you.

Exactly. I keep telling my friends that Linus Torvolds hasn't made a
penny from licensing Linux, but he always has a job. Now, whether Linux
is patented or not, I don't know. So it may be a bad analogy.

It's better to have a little bit of something very big than the whole of
something very small.

Also, what I have said many times. All I want is to earn a modest salary
as an employee of the non-profit promoting the standard. You know the W3C
is not an all volunteer operation, after all.

They'll only try if it gets traction - and if you patent it it will never
get traction.


But no-one would be using XML if they had. XML is only a prolix syntax for
S-Expressions, and S-Expressions, though very flexible, are not the only
flexible expression of data. If XML were encumbered with patents, we'd all
be using something different.

I don't agree with that logic but that is just my opinion. Crayola
patented their crayons but you can still draw lots of pretty pictures
with them. If the patents are licensed for free, with no restrictions on
how the technology can be used, then there is nothing stopping anyone
from building new patents based on the technology, or just making up new
inventions or standards based on the other patent and never patenting
that new part. Just as there is nothing stopping anyone from extending an
unpatented, prior-art and patenting the extension or improvement. Almost
no patents are on entirely new things with no prior art. The patent only
covers what is new and different. If the owner of the new patent wants to
do anything with their new technology then they must have rights to use
the prior art. This is achieved either through licensing existing patents
or simply using the unpatented, prior-art for free.

If I patent my standard, I will be able to license it for free. But I
will also be able to place restrictions on that license. I can say it is
free only so long as you don't attempt to "embrace and extend" the
standard for proprietary purposes. This is the best of both worlds.

 

[Simon Brooke]

Exactly. I keep telling my friends that Linus Torvolds hasn't made a
penny from licensing Linux, but he always has a job. Now, whether Linux
is patented or not, I don't know. So it may be a bad analogy.

Of course it's not. How could it be? It started out as the apolitical son
of communists in a socialist country deliberately reverse engineering an
existing system - UN*X. It's now significantly different from UN*X in some
interesting ways, and some people claim to have patents on many parts of
it (see for example the ongoing IBM/SCO/Novell litigation). None of these
can or will stop Linux.

I don't agree with that logic but that is just my opinion. Crayola
patented their crayons but you can still draw lots of pretty pictures
with them.

And you can buy other crayons from other people. A crayon is not a
standard. A standard is something used by a community of independent and
in many cases competing and even hostile bodies in order to allow them to
interact; consequently, a standard does not work unless it has effective
monopoly. Many standards - even many variations on the same standard
(RS232) - are equivalent to no standard.

If the patents are licensed for free, with no restrictions on
how the technology can be used, then there is nothing stopping anyone
from building new patents based on the technology, or just making up new
inventions or standards based on the other patent and never patenting
that new part. Just as there is nothing stopping anyone from extending an
unpatented, prior-art and patenting the extension or improvement. Almost
no patents are on entirely new things with no prior art. The patent only
covers what is new and different. If the owner of the new patent wants to
do anything with their new technology then they must have rights to use
the prior art. This is achieved either through licensing existing patents
or simply using the unpatented, prior-art for free.

If I patent my standard, I will be able to license it for free. But I
will also be able to place restrictions on that license. I can say it is
free only so long as you don't attempt to "embrace and extend" the
standard for proprietary purposes. This is the best of both worlds.

I think you are deluding yourself. In most of the world, software patents
are illegal anyway (as they should be). In the US, where they're not
illegal, as you yourself say the people likely to 'embrace and extend' a
successful standard are Microsoft. Do you think you could afford a battle
with Microsoft in the US courts? How many billion dollars could you
personally afford to pay your lawyers?

--
(e-mail address removed) (Simon Brooke) http://www.jasmine.org.uk/~simon/
"This young man has not the faintest idea how socialists think and does
not begin to understand the mentality of the party he has been elected
to lead. He is quite simply a liberal"
-- Ken Coates MEP (Lab) of Tony Blair

 

[Grant Robertson]

I think you are deluding yourself. In most of the world, software patents
are illegal anyway (as they should be). In the US, where they're not
illegal, as you yourself say the people likely to 'embrace and extend' a
successful standard are Microsoft. Do you think you could afford a battle
with Microsoft in the US courts? How many billion dollars could you
personally afford to pay your lawyers?

Technically, this wouldn't be a software patent. It would be a process
patent. If patents on standards were worthless, do you think Sun would
have patented Open Document Format? Perhaps. Big companies patent how
many steps it took to get down the hall today, just in case.

I wouldn't battle Microsoft in the courts. I would battle them in the
public press. I would shame Bill Gates for trying to monopolize education
and profit from the suffering of the poor. I would also write his wife a
letter asking her to appeal to what little conscience he has left.

Besides, are you saying that I should never try to protect intellectual
property just because someone like Bill Gates could steal it if they
wanted to? If that were the case then we might as well just stop
inventing anything and let Microsoft and IBM do it all.

If I don't protect the standard then I will have more than Microsoft to
deal with. I will then have to deal with every shyster with a lawyer
trying to horn in on my invention.

I want to give it away for free. But, in order to do that, I have to
ensure that it will stay free.

 

[gg]

but is a published process like the xml standard patentable?

 

[Simon Brooke]

I want to give it away for free. But, in order to do that, I have to
ensure that it will stay free.

Seriously, if you want that, the solution is one of:

The GPL <URL:http://www.gnu.org/licenses/gpl.html> - not designed for this
sort of thing, but with real legal teeth.

GNU Free Documentation License <URL:http://www.gnu.org/licenses/fdl.html> -
designed for this sort of thing, and with the firepower of the FSF behind
it.

Creative Commons <URL:http://creativecommons.org/> - pick-n-mix licensing
which should do more or less what you want but legally less tested.

 

[Grant Robertson]

Seriously, if you want that, the solution is one of:

The GPL <URL:http://www.gnu.org/licenses/gpl.html> - not designed for this
sort of thing, but with real legal teeth.

I have been considering this. I haven't had time to really study either
GPL v2 or GPL v3 to see if it would really meet my needs. Remember, a
standard is not code. So many aspects of GPL would not apply

GNU Free Documentation License <URL:http://www.gnu.org/licenses/fdl.html> -
designed for this sort of thing, and with the firepower of the FSF behind
it.
Creative Commons <URL:http://creativecommons.org/> - pick-n-mix licensing
which should do more or less what you want but legally less tested.

Nor is a standard simple documentation. Neither of these would apply. I
have been told by an IP expert that copyright only protects the text of
the code not the algorithm. In this case, it would only protect the text
of the documentation of the standard, not the ideas and principles of the
standard.

 

[Grant Robertson]

Seriously, if you want that, the solution is one of:

The GPL <URL:http://www.gnu.org/licenses/gpl.html> - not designed for this
sort of thing, but with real legal teeth.

I finally found a great reference about this issue, and it supports your
suggestions. Take a look at...

http://lists.xml.org/archives/xml-dev/200108/pdf00000.pdf

....paying particular attention to section V.D. starting on page 9. This
paper specifically addresses my concerns about as exactly as if I had
written them myself. The paper is written as a report from an XML.org
working group called Legal-XML which was formed to create XML standards
for the transmission of legal documents. Heck, if those guys don't know
about protecting the intellectual property of XML standards then no one
does.

So, I guess this about settles it. My notion of patenting the standard,
though legally possible, was unnecessary. It appears that *a* GPL will do
just fine. I don't know if the GNU GPL will exactly meet my needs but at
least I now know I won't have to go to the expense of getting a patent.

Thanks for all your suggestions and patience. Many get pretty religious
on this issue and won't take the time to explain themselves civilly.

 

[Simon Brooke]

I finally found a great reference about this issue, and it supports your
suggestions. Take a look at...

http://lists.xml.org/archives/xml-dev/200108/pdf00000.pdf

...paying particular attention to section V.D. starting on page 9. This
paper specifically addresses my concerns about as exactly as if I had
written them myself. The paper is written as a report from an XML.org
working group called Legal-XML which was formed to create XML standards
for the transmission of legal documents. Heck, if those guys don't know
about protecting the intellectual property of XML standards then no one
does.

So, I guess this about settles it. My notion of patenting the standard,
though legally possible, was unnecessary. It appears that *a* GPL will do
just fine. I don't know if the GNU GPL will exactly meet my needs but at
least I now know I won't have to go to the expense of getting a patent.

There is only one GPL - the G stands for 'GNU', which in turn stands
for 'Gnu is Not UNIX'. There are, however, different versions of the GPL.
V2 is the one in common current use and is so legally fierce that no-one
has yet dared seriously challenge it in court. V3 is currently in draft
and promises to be even fiercer.

FWIW I release all the code I make my living from under GPL V2.

 

[Richard Tobin]

I want to give it away for free. But, in order to do that, I have to
ensure that it will stay free.

[/QUOTE]

Seriously, if you want that, the solution is one of:

The GPL <URL:http://www.gnu.org/licenses/gpl.html> - not designed for this
sort of thing, but with real legal teeth.

Regardless of whether the GPL is appropriate for protecting a
specification, the OP apparently wants to prevent others from
extending his work, which is contrary to the spirit of the GPL. While
I sympathise with the aim of preventing the likes of Microsoft from
"embracing and extending", doing this by restricting what ordinary
users can do would certainly put me off using it.

A less extreme approach is to have the definition require that
non-conformant documents not be accepted. This is what XML does, so
that (for example) an extension that allowed </> end tags would not be
able to claim conformance with the XML specification.

-- Richard

 

[Grant Robertson]

There is only one GPL - the G stands for 'GNU', which in turn stands
for 'Gnu is Not UNIX'. There are, however, different versions of the GPL.
V2 is the one in common current use and is so legally fierce that no-one
has yet dared seriously challenge it in court. V3 is currently in draft
and promises to be even fiercer.

I figured out that every one refers to "The General Public License" as if
it were the only general public license, so I guess that term has become
a de facto name for the "GNU General Public License." So the "G" in
"GPL" stands for "General" not "GNU." The "G" in "GNU" stands for GNU. If
you don't believe me just check out www.gnu.org. Anyway that is a minor
point.

I have also been doing a lot of research lately. Many commentators,
especially lawyers in the software licensing field working FOR open
source causes, seem to feel that all of the open source licenses (to use
the more general term) are on a bit of shaky ground exactly because the
concept has never been tested in court. The shrink-wrap licenses have
been upheld in court but that may be because they are on paper and the
software installation disk is a physical object. Enforcing a license
against someone who never entered into a legal contract just because they
modified some code hasn't been tested as far as I could find. If you have
some case law to cite I would love to see it. Keep in mind, I am not
arguing against open source licensing. I am just saying it may or may not
have as many teeth as advocates give it credit for.

After having read through a couple dozen licenses, the GPL does not seem
to be nearly as accurate of a legal document as many others I have seen.
Precise legal phrasing is there for a reason, just like clean coding
practices are there for a reason. Even if it looks the same to non-
professionals, it may not work out as well in the end. With all the non-
precise language and excessive explanations and examples in the GPL, they
have actually left MORE room for misinterpretation. That is just the way
it works with legal documents. No, I am not a lawyer, but I have heard
and read this point explained by many lawyers.

I personally suspect that the major companies like Microsoft haven't
directly challenged the GPL or any other open source license because they
fear it would invalidate their shrink-wrap licenses. After all, no one
signed anything and people really just made up the idea of claiming that
someone entered into a contract just by opening a package. I think they
made it up hoping it would get traction just from common use. Eventually
it did but, in the beginning, many doubted their legitimacy.

It would probably be better if there were a legal challenge to the GPL.
Then the open source community would either have set a precedent, if GPL
won, or learned what needs to be fixed, if GPL lost. I don't think a loss
would kill open source. It would just teach people that they can't just
make up these licenses will-nilly and expect them to hold up in court.
They must get real lawyers involved and create legally precise documents.

FWIW I release all the code I make my living from under GPL V2.

Now I know I am going way off topic for this newsgroup but I am curious.
The money you make from writing that code is that paid to you by a
company? So, if you are working for a company then it is the company that
is releasing the software under GPL, correct. So, you are making a living
just writing code, whether or not that code is profitable. It could be
that your company is loosing money hand over fist because they haven't
figured out how to make money using the open source model. Or they are
making a fortune on support. I don't know. But in that case, you are
making money from writing code, not from releasing software under GPL.

On the other hand, if you are working for yourself, could you please tell
me how you are actually making a living by writing code and giving it
away. I'm not arguing. I am genuinely curious.

I suspect that the open source business model can only work for companies
who are big enough to do the marketing it takes to convince people to pay
for support. Even Linus Torvolds has to have a job somewhere where
someone is willing to pay him money to work on Linux. As an individual,
even he isn't "big" enough to make money releasing code as open source.
Again, not arguing against. Just making an observation.

 

[Grant Robertson]

Regardless of whether the GPL is appropriate for protecting a
specification, the OP apparently wants to prevent others from
extending his work, which is contrary to the spirit of the GPL. While
I sympathise with the aim of preventing the likes of Microsoft from
"embracing and extending", doing this by restricting what ordinary
users can do would certainly put me off using it.

Actually, I am trying to keep anyone from extending the standard OUTSIDE
OF THE OFFICIAL STANDARDS PROCESS.

Please see http://www.opensource.org/osr-rationale on the Open software
Initiative's web site. About a third of the way down the page you will
find the following quote.

"Some seek to burnish the perception of their products or technologies by
claiming that they implement "open standards" while at the same time
adding extensions that are not part of the standard. Others go farther,
claiming that their unique implementations are themselves "open
standards", a reversal of standards logic. The result is that the
(usually undefined) term "open standard" has become more of an
aspirational term than a defining term, a problem that we seek to
rectify."

Other documents on their site underscore the importance of ensuring that
any standard claiming to be "open" must work to ensure that third parties
can not extend the standard in proprietary ways. Remember, a standard is
not software. If you add features to software then release it for others
to use and modify then everyone still has access to the old software. But
if some big company like MicroSoft fragments a standard by releasing non-
complying, proprietary software and force feeding that software to the
public then they can kill the standard.

So, "ordinary users" can always suggest and work for changes in the
standard. Just as one can do with all the existing internet standards.
But they will not be allowed to fragment the standard by releasing non-
conforming software or content and claiming it is yet another "version"
of the standard.

A less extreme approach is to have the definition require that
non-conformant documents not be accepted. This is what XML does, so
that (for example) an extension that allowed </> end tags would not be
able to claim conformance with the XML specification.

This is exactly what I plan to do when I design my XML schema.

 

[Richard Tobin]

Regardless of whether the GPL is appropriate for protecting a
specification, the OP apparently wants to prevent others from
extending his work, which is contrary to the spirit of the GPL. While
I sympathise with the aim of preventing the likes of Microsoft from
"embracing and extending", doing this by restricting what ordinary
users can do would certainly put me off using it.

[...]

So, "ordinary users" can always suggest and work for changes in the
standard. Just as one can do with all the existing internet standards.
But they will not be allowed to fragment the standard by releasing non-
conforming software or content and claiming it is yet another "version"
of the standard. [/QUOTE]

Well, you might be able to trademark the name to prevent them from
claiming that it's a version of it, but I don't think you can - or
should be able to - stop people from writing software that implements
extensions to your standard.

The author of the 1960s programming language TRAC tried to use
trademark law to control the language, but extended versions were
produced under different names.

-- Richard

 

[Joseph Kesselman]

Well, you might be able to trademark the name to prevent them from
claiming that it's a version of it

Which is what Sun did with Java; they enforced that against Microsoft
when the MS version diverged too strongly from the spec.

If you're serious about seeking legal protection, I ***STRONGLY***
recommend you pay the money to hire a lawyer to advise you. Free legal
advice found on the Internet is generally not worth more than you paid
for it.

 

[Grant Robertson]

Well, you might be able to trademark the name to prevent them from
claiming that it's a version of it, but I don't think you can - or
should be able to - stop people from writing software that implements
extensions to your standard.

Then you would be indisagreement with the Open Source Initiative and most
of the experts on the open standards field. Only by protecting a standard
can it ever be a "standard" at all. Fragmentation is what killed UNIX.
Linus Torvold's tight rein on what can be considered part of the kernal
of Linux is what makes it successful.