Opera developer Haavard Moen has accused Apple of repeatedly using patents to undermine the development of Web standards and block their finalization.

World Wide Web Consortium (W3C), the industry group that governs and oversees the development of Web standards, requires that every specification it approves be implementable on a royalty-free basis, barring extraordinary circumstances that justify an exception to this rule. The specifications can contain patented technology, as long as royalty-free patent licenses are available.

Members of W3C—a group that includes representatives from Apple, Microsoft, Google, Mozilla, and Opera—are required to disclose any patents that they hold that are relevant to each specification. Depending on how far the specification is through the standardization process, they have between 60 and 150 days to make this disclosure.

If royalty-free licensing is available, the specification can proceed as normal. Participation in the development of a particular specification obliges W3C members to offer royalty-free licensing for technology used in that specification. Nonparticipants can also voluntarily offer a royalty free license, but they are not obliged to.

If, however, there is no commitment to offer royalty-free licensing for the patents in question, a Patent Advisory Group (PAG) is formed. The PAG will then assess whether the patent is truly applicable to the specification, and if so, how best to address the issue. The PAG might then seek prior art to invalidate the patent, or it might recommend that the specification be modified, to work around the patent. It might even advise abandonment of the specification. Only in exceptional circumstances will it decide that the specification should stand, in spite of the lack of royalty freedom.

Without an appropriate patent grant, browser vendors—whether open source or proprietary—cannot implement the specification without opening themselves up to a lawsuit. Such specifications would be, at best, an extremely risky proposition for anyone seeking to develop a browser, and none of the major browser vendors would even consider implementing a specification with known unlicensed patents.

Haavard identifies three separate occasions, twice in 2009, and again in 2011, where Apple has disclosed patents and not offered royalty-free licensing. In the first 2009 patent claim, Apple said that it had a patent covering W3C's "widget" specification. A PAG was formed, and determined that Apple's patent was not relevant. In the second 2009 claim, Apple claimed to have two patents covering W3C's widget security specification. A PAG was again formed. It decided that one patent was not relevant, and the other didn't apply. With both 2009 claims, Apple waited until the last minute to disclose its patents.

Touch events

This time, Cupertino is claiming to have three patents, and an application for a fourth, that cover some of W3C's touch event specification. This time the disclosure was made with about a month left to go. Again, the lack of royalty-free licensing means that a PAG is likely to be formed.

This in turn will delay the development of the specification and cost W3C members further time and money. The PAG process is not quick; the widget security PAG did not deliver its verdict until October of this year.

Haavard's conclusion is that there is a pattern of behavior here; that Apple is trying to disrupt the standards process with its patent claims. He references the touch specification in particular—this is plainly an area where Apple has lots of expertise and interest in the technology, but the company opted out of working on the specification. If Apple had worked on the specification, it would have had to disclose sooner and offer licensing, and Haavard believes that avoiding this commitment is why Apple refused to work on the specification.

Apple is acting within its rights. W3C obliges members to disclose patent claims, and Apple is duly disclosing them. However, it's easy to be sympathetic to Haavard's argument. The two prior PAGs that resulted from Apple's refusal to offer royalty-free patent licenses delayed and inconvenienced W3C, but ultimately on both occasions the groups decided that Apple's patent claims were irrelevant. If Apple was hoping to keep some technology to itself, it did not succeed.

Moreover, W3C doesn't require patent-holders to give up their competitive advantage. It's acceptable to W3C for the royalty-free patent licenses to only cover implementations of the W3C specifications; if Apple wants to permit the royalty-free use of its touch patents in HTML5 browsers, but nowhere else, this would be an option. Such terms would allow browsers to implement the standard but still keep the technology off-limits to, for example, Android. But Apple did not offer such terms before, and so it seems unlikely that it will offer such terms this time.

Further, the only likely result of this is that Apple's patents simply get worked around. W3C's aversion to royalties means that it's unlikely that it would accept any non-free license (should Apple even offer one), and the importance of touch input to phones and tablets means that W3C is unlikely to abandon the specification altogether. There's no win possible for Apple—just wasted time and money for those seeking to make the Web a more effective, more open platform.

Indeed, the result might even constitute a loss for Apple; the prior art that PAGs can uncover could jeopardize the patents themselves. The PAG subjects the patents to a certain amount of scrutiny—scrutiny that could be avoided through provision of a suitable license.

Apple has thus far not responded to our request for comment.

Apple's work on WebKit and with W3C has undoubtedly helped the Web community. But actions such as this show the company's approach to standards and intellectual property is, at best, inconsistent, and and worst downright unhelpful: if open standards and Apple's IP interests conflict, it's the IP interests that win out. This may be good for Apple, but it's bad for the open Web.