WHATWG

Intellectual Property Rights Policy

This Intellectual Property Rights Policy ("IPR Policy") applies to all Contributions to and publications of the WHATWG, and governs the intellectual property obligations of all Contributors to and Workstream Participants of the WHATWG.

To the extent any other WHATWG policies, other than the Steering Group Agreement, conflict with this IPR Policy, the IPR Policy controls.

1. Intellectual property obligations

1.1. Purpose

All Contributors make commitments regarding copyrights; all Contributors (including Workstream Participants who make Contributions) make additional patent-licensing commitments regarding Essential Patent Claims on Contributions; Workstream Participants make additional patent-licensing commitments regarding Review Drafts.

2. Definitions

2.1. "Contribution"

"Contribution" means any proposal to make changes to a particular WHATWG Living Standard; "Contributor" means any Individual or Entity making a Contribution. For the avoidance of doubt: For new Workstreams, "Contribution" includes the Living Standard as submitted in connection with a proposed Workstream, if the Workstream is approved and the Living Standard is published.

2.2. "Essential Patent Claims"

"Essential Patent Claims" means "Essential Contribution Claims" and/or "Essential Review Draft Claims", as applicable.

2.2.1. "Essential Contribution Claims"

"Essential Contribution Claims", with respect to a Contribution, means all claims in any patent or patent application in any jurisdiction in the world that would necessarily be infringed by the Contribution or by combination of the Contribution with the Living Standard as it existed at the time of the Contribution ("Combination") as part of an implementation of the Living Standard to which the Contribution was made. A claim is necessarily infringed hereunder only when it is not possible to avoid infringing it because there is no non-infringing alternative for implementation of the Contribution or Combination as Normative portions of the Living Standard. For a Combination, Essential Contribution Claims only include those claims where the addition of the Contribution causes the Combination to necessarily infringe those claims. Existence of a non-infringing alternative shall be judged based on the state of the art at the time the Contribution is made.

2.2.2. "Essential Review Draft Claims"

"Essential Review Draft Claims", with respect to a Review Draft, means all claims in any patent or patent application in any jurisdiction in the world that would necessarily be infringed by implementation of the Review Draft. A claim is necessarily infringed hereunder only when it is not possible to avoid infringing it because there is no non-infringing alternative for implementation of the Normative portions of the Review Draft. Existence of a non-infringing alternative shall be judged based on the state of the art at the time the Review Draft is published.

2.2.3. The following are expressly excluded from and shall not be deemed to constitute Essential Patent Claims:
  1. any claims other than as set forth in "Essential Contribution Claims" or "Essential Review Draft Claims" even if contained in the same patent as Essential Patent Claims; and

  2. claims which would be infringed only by:

    1. portions of an implementation that are not specified in the Normative portions of the Living Standard or Review Draft, or
    2. enabling technologies that may be necessary to make or use any product or portion thereof that complies with the Living Standard or Review Draft and are not themselves expressly set forth in the Living Standard or Review Draft (e.g., semiconductor manufacturing technology, compiler technology, object-oriented technology, basic operating system technology, and the like); or
    3. the implementation of technology developed elsewhere and merely incorporated by reference in the body of the Living Standard or Review Draft; and
  3. design patents and design registrations.

2.3. "Excluded Claim"

"Excluded Claim" means a patent claim excluded in accordance with the requirements of Section 5.5. Patent Exclusions.

2.4. "Normative"

For purposes of this definition, the "Normative" portions of the Living Standard or Review Draft shall be deemed to include only architectural and interoperability requirements. Optional features in the RFC 2119 [KEYWORDS] sense are considered Normative unless they are specifically identified as informative. Implementation examples or any other material that merely illustrate the requirements of the Living Standard or Review Draft are informative, rather than Normative.

2.5. "Patent Exclusion Period"

"Patent Exclusion Period" means the 45-Day period during which a Workstream Participant may exclude patents from the royalty-free Patent-Licensing Obligations, as more fully set forth in Section 5.5. Patent Exclusions.

2.6. "Patent Licensing Obligation"

"Patent-Licensing Obligation" under this Policy (including both the "Contribution Licensing Obligation" and "Review Draft Licensing Obligations" referred to in Article 5. Patents) in this IPR Policy) means a non-assignable, non-sublicensable license to the licensor's Essential Patent Claims to make, have made, use, sell, have sold, offer to sell, import, and distribute and dispose of implementations of the Living Standard or Review Draft that: 1. are available to all, worldwide; 2. extend to all Essential Patent Claims owned or controlled by the licensor; 3. may be limited to implementations of the Living Standard or Review Draft, and to what is required by the Living Standard or Review Draft; 4. may be conditioned on a grant of a reciprocal royalty-free license to all Essential Patent Claims owned or controlled by the licensee. A reciprocal license may be required to be available to all, and a reciprocal license may itself be conditioned on a further reciprocal license from all; 5. may not be conditioned on payment of royalties, fees, or other consideration; 6. may be suspended, as to a particular WHATWG Living Standard, with respect to any licensee when licensor is sued by licensee for infringement of claims essential to implement that WHATWG Living Standard; 7. may not impose any further conditions or restrictions on the use of any technology, intellectual property rights, or other restrictions on behavior of the licensee, but may include reasonable, customary terms relating to operation or maintenance of the license relationship such as the following: choice of law and dispute resolution; 8. shall not be considered accepted by an implementer who manifests an intent not to accept the terms of the above-referenced license as offered by the licensor.

2.7. "Patent Exclusion Notice"

"Patent Exclusion Notice" means a communication that complies with the requirements of Section 5.5.3. below.

2.8. License term

2.8.1.

The license conforming to the requirements in this Policy shall be made available by the licensor as long as the Living Standard has not been depublished by the WHATWG. The term of such license shall be for the life of the patents in question, subject to the limitations of Subsection 2.7.3., below.

2.8.2.
Subject to the suspension right in Section 2.6. Patent Licensing Obligation, upon the licensee's request, licenses granted must be retroactive to the effective dates of the obligations set forth in Sections 5.2. Contribution Licensing Obligations and 5.3. Review Draft Licensing Obligations, as applicable.
2.8.3.
If the Living Standard is depublished by the WHATWG, then no new licenses need be granted but any licenses granted before the Living Standard was depublished shall remain in effect.

2.9. Day

"Day" means 24 hours, commencing upon execution of a specific act, and is calculated without reference to time zones. To avoid confusion, Universal Coordinated Time is used.

3. Agreements

3.1. Contributors and Workstream Participants

Commencing 2018-01-11, the IPR Policy becomes effective and all Contributors and Workstream Participants must execute the Contributor and Workstream Participant Agreement in order to contribute or participate in Workstreams. To help ensure that appropriate licensing commitments are secured from all Contributors, individuals may Contribute independently to a Living Standard only if they do not work in the field of Web technologies as an employee, contractor, or agent of another person or legal entity (as set forth in the Contributor and Workstream Participant Agreement).

For all Contributions to the WHATWG that are made in writing or reduced to writing, each Contributor warrants that it owns the copyright in each Contribution or otherwise has sufficient rights under copyright to make each Contribution under the Copyright License Grant set forth in Section 4.2. Inbound Copyright License Grant. If the Contributor does not own the copyright in a Contribution, the Contributor must identify

  1. the Contribution,
  2. each copyright owner, and
  3. the licenses, permissions, and any limitations that apply to the Contribution.

With respect to each Contribution and other submissions offered to the WHATWG for inclusion in any WHATWG document or software, each Contributor or submitter agrees to grant, and hereby grants, licenses under copyright in accordance with the Copyright License Grant set forth in the WHATWG Intellectual Property Rights Policy in effect at the time the Contribution or submission was made (the "Copyright License Grant"). The following is the current Copyright License Grant:

Contributor hereby grants to the WHATWG, all Workstream Participants, implementers of the Living Standard, and consumer of other documentation an unrestricted, perpetual, irrevocable, non-exclusive, transferable, worldwide, fee-free and royalty-free copyright license to copy, modify, disclose, reproduce, prepare derivative works of, publicly display, publicly perform, sublicense, and distribute Contributions and other materials in their original and modified forms, and to allow others to do the same, with no individual attribution, duty to account to any other copyright owner, or joint authorship or similar rights in any publication. For purposes of publication, the owner of documents published by the WHATWG is the WHATWG and each of its Steering Group Members.

5. Patents

5.1. Patent-licensing obligations in general

Patent-Licensing Obligations are incurred with respect to WHATWG Living Standards and Review Drafts in two ways:

  1. by making a Contribution to a Living Standard that is not withdrawn within the period allowed (the "Contribution Licensing Obligations"); and
  2. by Workstream Participants who forego the right to exclude essential patents against a Review Draft when provided the opportunity to do so (the "Review Draft Licensing Obligations").

5.2. Contribution Licensing Obligations

For each Contribution, the Contribution Licensing Obligations are effective irrevocably on the 45th Day after the Contribution was first made.

5.3. Review Draft Licensing Obligations

For Workstream Participants, the Review Draft Licensing Obligations are effective irrevocably (except as to Excluded Claims) upon conclusion of the Patent Exclusion Period and applies to the entire Review Draft.

5.4. Review Draft publication

Each Workstream periodically publishes a Review Draft version of the Living Standard. The Patent Exclusion Period commences automatically upon the Editor's posted notice that the Review Draft has been published and continues for 45 Days. Upon conclusion of the Patent Exclusion Period, Workstream Participants incur the Review Draft Licensing Obligations unless the Workstream Participant has delivered a timely Patent Exclusion Notice.

When a Workstream Participant joins a Workstream, the most-recent Review Draft is deemed to have been "published" and a Patent Exclusion Period commences, with respect to that Workstream Participant, when it joins.

5.5. Patent exclusions

5.5.1.

A Workstream Participant may exclude Essential Patent Claims from the Review Draft Licensing Obligations by providing a Patent Exclusion Notice to the Workstream and the Steering Group within the Patent Exclusion Period. (A Workstream Participant may file a Patent Exclusion Notice and continue to participate in the Workstream.)

5.5.2.
For Workstream Participants that continue their participation through successive Review Drafts, the scope of the patent-exclusion opportunity extends only material that could not have been the subject of an exclusion by that Workstream Participant with respect to a preceding Review Draft (i.e., material that is new or has been modified such that it creates the potential for infringement not present in any previous Review Draft the Workstream Participant could have excluded against).
5.5.3.
To be effective, a Patent Exclusion Notice must (1) be delivered to the Workstream and the designated Steering Group contact within the 45-Day period from publication of the Review Draft, (2) provide the patent or publication number (for published applications) or application number (for unpublished applications) of the patent to be excluded, and (3) identify the relevant sections of the Review Draft that would infringe the excluded patent with sufficient specificity that the Editor can tag those elements as being the subject of a Patent Exclusion Notice. It may also briefly summarize the patent claims.
5.5.4.
Patent Exclusion Notices will be made available promptly by the Steering Group or the Editor to all Workstream Participants for internal review only, and may be published by the Steering Group for review by the general public after seven Days' notice to the excluding party.
5.5.5.
Excluded Claims may be addressed by technical workaround, posting of the exclusion notice, or other means the Steering Group deems appropriate (including the retention of counsel or advisors to prepare a private advisory memo). The Steering Group may take these actions directly, appoint a group of advisors to make a recommendation, or delegate the decision. Decisions that affect the Workstream will be published.
5.5.6.
The Steering Group will establish a location that lists all Patent Exclusion Notices. The location will be available even if there are currently no Patent Exclusion Notices. This location must include the text: "The WHATWG takes no position on the essentiality of any patent claim or the validity of any exclusion notice."
5.5.7.
Except as set forth above regarding new Workstream Participants, Review Drafts published prior to Workstream participation are not subject to the exclusion opportunity (nor, by extension to the commitment obligations); once incurred, however, Patent-Licensing Obligations are cumulative and may not be withdrawn.

5.6. Patent disclosures

5.6.1. Disclosures regarding contributions

When making a Contribution or as soon as feasible thereafter, the individuals who submit the Contribution (i.e., either an Individualcontributor or the representatives of an Entity) must identify any patent that they (1) are personally aware of and (2) believe would be infringed by use or implementation of the Contribution, unless the Contributor is making the claims subject to the Patent-Licensing Obligations. (For the avoidance of doubt: No patent search is required.)

5.6.2. Disclosures regarding excluded claims
Patent claims excluded in accordance with the provisions for "Patent Exclusions" above must include the information set forth in Section 5.5.3.
5.6.3. Voluntary disclosures
Any person may, at their sole option, identify patent claims (including third-party patents) that they believe are Essential Claims with respect to a particular Living Standard.

6. Trademarks

WHATWG Standards may be identified as "the WHATWG [Standard]" so that forks can be distinguished.

7. Publications

7.1.1. Living Standards and Review Drafts

WHATWG Living Standards and Review Drafts are published under Creative Commons "Attribution 4.0 International (CC BY 4.0)".

7.1.2. Other documents

Documents other than Living Standards and Review Drafts are published under Creative Commons "Attribution 4.0 International (CC BY 4.0)" unless a different license (or license waiver) is specified by the Steering Group.


This document includes material derived from the W3C Patent Policy. Copyright © 2004 W3C® (MIT, ERCIM, Keio, Beihang). See W3C Notices.

Copyright © 2018 WHATWG (Apple, Google, Mozilla, Microsoft). This work is licensed under a Creative Commons Attribution 4.0 International License.