IP and Web Technology

I recently had a conversation with the principals of another startup, who I’m an informal advisor for, that uses SVG as a central technology. They told me they’d applied for a patent on a combination of SVG and CSS media features (aka “media queries”) for darkmode. I told them then, as I’d told them before, that they can’t do that.

As a public service, I thought it would be useful for them, and for everyone else, if I explained why (or rather, why not) in detail. I hope this will save people from wasting money on patents, from paying for advice from IP lawyers and advisors who don’t know what they’re talking about, and more importantly, save anyone else from frivolous lawsuits regarding web tech.

W3C has a patent policy–a very clever patent policy–that protects their web technologies from predatory practices, and keeps a level playing field for everyone using them. If you’re a lawyer, you should read it; for everyone else, I’m going to highlight some key aspects.

This patent policy has two primary protections: one for members and contributors, and one for users.

  1. Members and contributors to W3C technologies explicitly grant royalty-free permissions to any applicable patents they have for a technology–any technology–developed while they are members of W3C. Does this mean they give up their rights to those patents? Not at all. It means that if Company A has a patent on, say, making a clip-path in a photo so you can insert your face on a mermaid’s body (yes, this is based on a real patent), and they were members of the W3C when the clip-path feature was added to SVG (that is, when it was first published circa 2001, and any subsequent publication that includes the clip-path), they must grant an irrevocable royalty-free (that is, no charge) license for anyone using clip-paths in SVG… but only in SVG. If someone wanted to make a physical photo-booth where they used clip-paths in raster images only, and didn’t use SVG in any way, they would be infringing on Company A’s patent, and would have to negotiate a license at whatever price Company A wanted to charge. (Or, you know, simply use SVG instead.) Company A still holds the patent and licensing rights for all non-SVG uses. But SVG users are protected. (I’ll explain why this is so vital in a bit.)
  2. Users of W3C technologies are protected from lawsuits by any W3C members or contributors who hold patents that are included in those technologies… unless they sue somebody else for infringing on one of their own patents that applies to a W3C technology. This is the very clever bit. Let’s say Company B has a patent on something that is later added to a W3C technology, and Company B shrewdly avoided joining W3C or making any patent policy commitments. Let’s say it’s a specific bezier-curve algorithm, or something. They can certainly sue some other company for using their patented bezier algorithm in SVG… or they can instead choose to use HTML, CSS, SVG, any of the DOM APIs, etc. You can’t have both. You can either assert your rights over your specific IP used on W3C tech, or you can use W3C tech–any W3C tech. You either share with everybody else, or you take your ball and go home, any everyone else will use one of the thousands of other balls at their disposal, and keep playing the game. Because the patent policy protects all W3C technologies, it protects everyone using any of them.

Thus, W3C protects users of their tech both explicitly (from legal agreements by people and companies who joined or contributed to W3C tech) and implicitly (from people who want to use W3C tech).

So, let’s take Company C, who is using W3C tech years after it was developed. They develop what they think–or more insidiously, they are advised by an ill-informed IP lawyer–is a novel technique using W3C technologies. They decide to patent it. Now, as the old regex joke goes, you’ve got two problems.

  1. You can either enforce your IP, and lose the rights to use any W3C technology–a real chicken-egg paradox–or;
  2. You can realize that the very act of using the combination of different W3C technologies for their explicitly intended effect is not patentable, but waste the money anyway.

Why is is not patentable? Because a) there prior art (someone’s already done the same thing), and b) it is “obvious to one skilled in the art”. Both of these are disqualifying from obtaining an enforceable patent. Can you get a patent anyway? Of course, because the patent office is overworked and understaffed and the IP landscape is far too vast for anyone to have a firm grasp on what’s already been done. So the lawyers and patent office take your money and give you the piece of paper (or rather, the registration number), and you can claim “Patented” or “Patent Pending”… but try to assert that patent in court and you’ll lose, either in the lower courts, or in appeal. And in the process of losing the case, you’ll also lose your rights to use W3C technologies as a bonus.

Okay, why is this important? Because without this very clever patent policy, there were be countless frivolous law suits that put a chilling effect on people publishing (or even using) web sites or web apps. That would be a terrible world. This is a legal framework for companies to cooperate to make a public commons without the tragedy.

This is what allows for innovation. Millions of web developers come up with elegant techniques for mixing and matching web tech to solve problems both trivial and devilish, and usually they share how to do this with others, and we all benefit.

I pioneered my share of clever SVG techniques through the years, and benefited even more from techniques other pioneered. In the specific case we’re talking about, using CSS media feature to change the colors of an SVG when a user has darkmode enabled… I don’t know who first did that, but I did it well over a decade ago. It’s not novel, but it is useful. And it’s useful because hundreds, maybe thousands, of people were involved in the conception, specification, standardization, testing, implementation, and deployment of the prefers-color-scheme feature to make sure that we could shift colors for people who needed them (for example, people with vision disabilities like low vision) or who just prefer darkmode. If people could patent that (which–again–they can’t), it would prevent all of us from trying to make our websites and graphics more accessible. To hell with that.

Please, don’t try to patent W3C tech features. Don’t believe people who say you can. And certainly don’t believe people who say you can’t use that tech because they own it; they don’t, and you can and should use it.