This is a draft document. The AgGateway staff anticipates board approval on .
Please refer to the errata for this document, which may include some normative corrections.
The AgGateway Patent Policy governs the handling of patents in the process of producing agriculture-industry Digital Resources [PROCESS, section 2]. The goal of this policy is to assure that Digital Resources produced under this policy can be implemented on a Royalty-Free (RF) basis.
The term digital resource is defined as: Refers to any digital content developed with the intent of assisting companies with implementing electronic connectivity between systems and devices within their own company, and between their company and other companies. Digital Resource includes standards, guidelines, communications tools, project-management tools, implementation tools, and requirements or proposals passed on to a Collaborating Digital Resources Body. [PROCESS, section 2]
Status of This Document
This is the version of the AgGateway Patent Policy.
The English version of this policy is the only normative version.
Changes from Previous Version
Summary of Changes
Updated § 4.2 to add additional paragraph at end of section.
Table of Contents
|Table of Contents|
This patent policy describes:
All numbered sections of this document (1-8), as well as hyperlinks to material within and outside of this document, are normative. All sections of The AgGateway Digital Resource-Development Process (“PROCESS”) referenced in this patent policy are incorporated into this policy.
2. Licensing Goals for AgGateway Digital Resources
In order to promote the widest adoption of agriculture-related Digital Resources, AgGateway seeks to issue Digital Resources that can be implemented on a Royalty-Free (RF) basis. Subject to the conditions of this policy, AgGateway will not publish a Digital Resource if it is aware that Essential Claims exist which are not available on Royalty-Free terms.
To this end, Working Group [PROCESS, section 2] charters will include a reference to this policy and a requirement that specifications produced by the Working Group will be implementable on an RF basis, to the best ability of the Working Group and AgGateway.
3. Licensing Obligations of Working Group Participants
The following obligations shall apply to all participants in AgGateway Working Groups. These obligations will be referenced from each Working Group charter and Calls for Participation [PROCESS, sections 3 and 4].
3.1. AgGateway RF Licensing Requirements for All Working Group Participants
As a condition of participating in a Working Group, each participant (AgGateway Members [PROCESS, sections 3 and 4], invited experts, and members of the public) shall agree to make available under AgGateway RF licensing requirements any Essential Claims related to the work of that particular Working Group. This requirement includes Essential Claims that the participant owns and any that the participant has the right to license without obligation of payment or other consideration to an unrelated third party. With the exception of the provisions of section 4 below, AgGateway RF licensing obligations made concerning the work the particular Working Group and described in this policy are binding on participants for the life of the patents in question and encumber the patents containing Essential Claims, regardless of changes in participation status or AgGateway Membership.
3.2. Limitation on Licensing Requirement for Non-Participating Members
Only the affirmative act of joining a Working Group, or otherwise agreeing to the licensing terms described here, will obligate a Member to the AgGateway RF licensing commitments. Mere Membership in AgGateway alone, without other factors, does not give rise to the RF licensing obligation under this policy.
3.3. Licensing Commitments in AgGateway Submissions
At the time an AgGateway Member Submission [PROCESS, section 7] is made, all Submitters and any others who provide patent licenses associated with the submitted document must indicate whether or not each entity (Submitters and other licensors) will offer a license according to the AgGateway RF licensing requirements for any portion of the Submission that is subsequently incorporated in an AgGateway Digital Resource. The AgGateway Team may acknowledge the Submission if the answer to the licensing commitment is either affirmative or negative, and shall not acknowledge the Submission if no response is provided.
3.4. Note on Licensing Commitments for Invited Experts
Invited experts participate in Working Groups in their individual capacity. An invited expert is only obliged to license those claims over which s/he exercises control.
4. Exclusion From AgGateway RF Licensing Requirements
Under the following conditions, Working Group participants may exclude specifically identified and disclosed Essential Claims from the overall AgGateway RF licensing requirements:
4.1. Exclusion With Continued Participation
Essential Claims may be excluded from the AgGateway RF licensing requirements by a participant who seeks to remain in the Working Group only if that participant indicates no later than 10 days after the Working Group delivers any Proposed New Digital Resource to the Digital Resource Center [PROCESS, sections 3 and 4] its refusal to license Essential Claims and specifically discloses the Essential Claims that will not be licensed on AgGateway RF. A participant who excludes Essential Claims may continue to participate in the Working Group.
If any claims are made essential by the Digital Resource's publication [PROCESS, sections 3 and 4] as a result of subject matter not present or apparent in the latest Proposed New Digital Resource [PROCESS, sections 3 and 4], the participant may exclude these new Essential Claims, and only these claims, by using this exclusion procedure within 60 days after the Digital Resource's publication [PROCESS, sections 3 and 4]. After that point, no claims may be excluded.
4.2. Exclusion and Resignation From the Working Group
A participant may resign from the Working Group no later than 10 days after the Working Group delivers any Proposed New Digital Resource to the Digital Resource Center [PROCESS, sections 3 and 4] and be excused from all licensing commitments arising out of Working Group participation.
An AgGateway member’s membership termination shall result in the terminated organization/individual’s termination as a participant in all working groups. Such termination shall be treated as if the organization/individual resigned from the Working Group as it relates to this policy.
4.3. Joining an Already Established Working Group
[There are no special provisions for this situation. This section is present to keep the numbered outline in sync with the W3C Patent Policy, from which this document is derived.]
4.4. Exclusion Procedures for Pending, Unpublished Patent Applications
Exclusion of Essential Claims in pending, unpublished applications follows the procedures for exclusion of issued claims and claims in published applications in section 4.1 through 4.3.
If option 2 is chosen, the effect of the exclusion will be limited to the identified part(s) of the specification.
4.5. Exclusion Mechanics
A Call for Exclusion will be issued by the Working Group Chair indicating the relevant documents against which participants must make exclusion statements as well as precise dates and deadlines for making any exclusions. In case there is any dispute about the dates for exclusion, the dates indicated in the Call for Exclusion are controlling. The Call for Exclusion will be sent to the Working Group mailing list and the Board of Directors. In the event that a Working Group produces more than one Proposed New Digital Resource, the exclusion procedure will be employed for each series of documents individually.
5. AgGateway Royalty-Free (RF) Licensing Requirements
With respect to a Digital Resource developed under this policy, an AgGateway Royalty-Free license shall mean a non-assignable, non-sublicensable license to make, have made, use, sell, have sold, offer to sell, import, and distribute and dispose of implementations of the Digital Resource that:
All Working Group participants are encouraged to provide a contact from which licensing information can be obtained and other relevant licensing information. Any such information will be made publicly available along with the patent disclosures for the Working Group in question.
6.1. Disclosure Requirements
Disclosure is required when both of the following are true:
Anyone in a Member organization who receives a disclosure request and who has such knowledge must inform their Primary Contact [POLICIES, section 3.5]. Where disclosure is required, the Primary Contact will do so.
6.2. Disclosure Exemption
The disclosure obligation as to a particular claim is satisfied if the holder of the claim has made a commitment to license that claim under AgGateway RF licensing requirements and the claim is no longer subject to exclusion under section 4. An Essential Claim is no longer subject to exclusion if a patent holder has affirmatively agreed to license the Essential Claim (effectively waiving its right to exclude such Essential Claim under section 4) or if the relevant exclusion period under section 4 has lapsed.
6.3. Disclosure Requests
Disclosure requests will be included in the "Status of This Document" section of each Digital Resource track document as it reaches each new maturity level (Proposed New Digital Resource, Digital Resource). Separate requests may be issued by AgGateway to any party suspected of having knowledge of Essential Claims. Such disclosure requests will instruct the recipient to respond through their Primary Contact (in the case of Members) or an AgGateway contact (in the case of non-Members). Disclosure requests other than those that appear in the specification itself should be directed to the Primary Contact.
Disclosure requests will provide administrative details for making disclosures.
6.4. Disclosure Contents
Disclosure statements must include:
the patent number, but need not mention specific claims
the Working Group and/or Digital Resource to which it applies
6.5. Disclosure of Laid-Open or Published Applications
In the case of laid-open or published applications, the Member's good faith disclosure obligation extends to unpublished amended and/or added claims that have been allowed by relevant legal authorities and that the Member believes to be Essential Claims. To satisfy the disclosure obligation for such claims, the Member shall either:
disclose such claims, or
identify those portions of the AgGateway specification likely to be covered by such claims.
6.6. Disclosure of Pending, Unpublished Applications
If an AgGateway Member includes claims in a patent application and such claims were developed based on information from an AgGateway Working Group or AgGateway document, the Member must disclose the existence of such pending unpublished applications.
6.7. Good Faith Disclosure Digital Resources
Satisfaction of the disclosure requirement does not require that the discloser perform a patent search or any analysis of the relationship between the patents that the Member organization holds and the specification in question.
Disclosure of third-party patents is only required where a member of the AgGateway Executive Staff, a Director on the AgGateway Board of Directors, or Working Group participant has been made aware that the third-party patent holder or applicant has asserted that its patent contains Essential Claims, unless such disclosure would breach a pre-existing non-disclosure obligation.
6.8. Timing of Disclosure Obligations
The disclosure obligation is an ongoing obligation that begins with the Call for Participation. Full satisfaction of the disclosure obligation may not be possible until later in the process when the design is more complete. In any case, disclosure as soon as practically possible is required.
6.9. Termination of Disclosure Obligations
The disclosure obligation terminates when the Digital Resource is published or when the Working Group terminates.
6.10. Disclosure Obligations of Invited Experts
Invited experts or members of the public participating in a Working Group must comply with disclosure obligations to the extent of their own personal knowledge.
6.11. Disclosures to Be Publicly Available on Digital Resource Track
Patent disclosure information for each specification on the Digital Resource track will be made public along with each public Working Draft issued by the Working Group.
7. Exception Handling
7.1. PAG Formation
In the event a patent has been disclosed that may be essential, but is not available under AgGateway RF licensing requirements, a Patent Advisory Group (PAG) will be launched to resolve the conflict. The PAG is an ad-hoc group constituted specifically in relation to the Working Group with the conflict. A PAG may also be formed without such a disclosure if a PAG could help avoid anticipated patent problems. During the time that the PAG is operating, the Working Group may continue its technical work within the bounds of its charter.
7.2. PAG Formation After a Digital Resource Is Published
A PAG may also be convened in the event Essential Claims are discovered after a Digital Resource is published. In this case the PAG will be open to any interested Member, though the PAG may choose to meet without the holder of the Essential Claims in question.
7.3. PAG Composition
The PAG is composed of:
Chairman of the AgGateway Board of Directors, who may delegate the assignment to the Vice Chairman
The AgGateway President
The AgGateway Chief Technology Officer
The AgGateway Chief Operating Officer
Working Group Chair, ex officio
Others as designated by the AgGateway President
AgGateway expects to provide qualified legal advice to all PAGs in the form of a Team member who develops experience with the PAG process and patent issues at AgGateway. Legal advice to the PAG will represent the interests of AgGateway as a whole. AgGateway plans to have lawyers present at meetings on a case-by-case basis as required by applicable agenda topics.
7.4. PAG Procedures
7.4.1. PAG Formation Timing
The PAG will be convened by the AgGateway Chief Technology Officer, based on a PAG charter developed by the AgGateway Chief Technology Officer, AgGateway counsel, and the Working Group Chair. The timing for convening the PAG is at the discretion of the AgGateway President, based on consultation with the Chief Technology Officer. In some cases, convening a PAG before a specific patent disclosure is made may be useful. In other cases, it may be that the PAG can better resolve the licensing problems at another point in the Digital Resource's development.
7.4.2. PAG Charter Requirements
The PAG charter should include:
In order to obtain input from the interested public at large, as soon as the PAG is convened, the PAG charter will be made public, along with all of the patent disclosure and licensing statements applicable to the Working Group in question.
7.5. PAG Conclusion
7.5.1. Possible PAG Conclusions
After appropriate consultation, the PAG may conclude:
The initial concern has been resolved, enabling the Working Group to continue.
The Working Group should be instructed to consider designing around the identified claims.
The Team should seek further information and evaluation, including and not limited to evaluation of the patents in question or the terms under which AgGateway RF licensing requirements may be met.
The Working Group should be terminated.
The Digital Resource (if it has already been published) should be rescinded.
Alternative licensing terms should be considered. The procedure in section 7.5.3 must be followed.
7.5.2. PAG Outcome
Outcomes 4, 5 or 6 require a Board review and AgGateway President's decision. In any case, the PAG must state its Proposal and reasons in a public AgGateway document.
7.5.3. Procedure for Considering Alternate Licensing Terms
After having made every effort to resolve the conflict through options 1, 2, and 3 under 7.5.1, the PAG, by consensus, may propose that specifically identified patented technology be included in the Digital Resource even though such claims are not available according to the AgGateway RF licensing requirements of this policy. In such case, the PAG Proposal must explain:
If the AgGateway President determines that the PAG Proposal is the best alternative consistent with the AgGateway mission, the interests of the agriculture-related community, and is clearly justified despite the expressed preference of the AgGateway Membership for RF licensing, then the Proposal shall be circulated for public comment and Board of Directors review. The AgGateway President may also circulate the Proposal for Board of Directors review without such endorsement. Should the PAG Proposal be rejected, then either sub-paragraph 4 or 5 of section 7.5.3 will apply as appropriate, without further action of the Board of Directors. Members of the Working Group who are bound to RF terms are not released from their obligations by virtue of the PAG Proposal alone. As with any newly chartered Working Group, new commitments must be made, along with possible exclusions. In order to expedite the process, the PAG Proposal should consider whether additional claims would be excluded under the new charter and include such information in the PAG Proposal.
8. Definition of Essential Claims
8.1. Essential Claims
"Essential Claims" shall mean all claims in any patent or patent application in any jurisdiction in the world that would necessarily be infringed by implementation of the Digital Resource. A claim is necessarily infringed hereunder only when it is not possible to avoid infringing it because there is no non-infringing alternative for implementing the normative portions of the Digital Resource. Existence of a non-infringing alternative shall be judged based on the state of the art at the time the Digital Resource is published.
8.2. Limitations on the Scope of Definition of Essential Claims
The following are expressly excluded from and shall not be deemed to constitute Essential Claims:
any claims other than as set forth above even if contained in the same patent as Essential Claims; and
claims which would be infringed only by:
portions of an implementation that are not specified in the normative portions of the Digital Resource, or
enabling technologies that may be necessary to make or use any product or portion thereof that complies with the Digital Resource and are not themselves expressly set forth in the Digital Resource (e.g., semiconductor manufacturing technology, compiler technology, object-oriented technology, basic operating system technology, and the like); or
the implementation of technology developed elsewhere and merely incorporated by reference in the body of the Digital Resource.
design patents and design registrations.
8.3. Definition of Normative, Optional and Informative
For purposes of this definition, the normative portions of the Digital Resource 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 Digital Resource are informative, rather than normative.
Appendix A: Definitions
Digital Resource: Refers to any digital content developed with the intent of assisting companies with implementing electronic connectivity between systems and devices within their own company, and between their company and other companies. Digital Resource includes standards, guidelines, communications tools, project-management tools, implementation tools, and requirements or proposals passed on to a Collaborating Digital Resources Body.
This document is derived from the W3C Patent Policy available at https://www.w3.org/Consortium/Patent-Policy-20040205/. Various license requirements apply, which are met by including the following statement, with associated links, from the W3C: