Patent license friction...

This is a real basic 
questions that has been nagging at me for quite a while. 

 

Lets say I want to 
use a OASIS specification (lets take SAML 2.0 - I'm not picking on them - but it 
makes a good illustration). I note that there are various IPR disclosures at http://www.oasis-open.org/committees/security/ipr.php - 
and some of these disclosures state that the patent owners *will* license their 
Patents for the purpose of SAML. Some express covenants not to assert claims. 
Some point to blanket licenses on web sites. 

 

If I were a lawyer I 
would find this situation a) confusing, b) scattered and c) potentially 
dangerous. For example, on that page, Fidelty states that it "would grant to any 
other person or legal entity a royalty-free, nonexclusive, nontransferable, 
license under Fidelity's NECESSARY CLAIMS to implement the SAML v2.0 OASIS 
Standard, and sell, promote or otherwise distribute the resulting 
implementation. "

 

Note the word 
"would". I don't see that Fidelty actually *has* granted a license. Thus, while 
they would now have a hard time enforcing the patent (given theories of 
estoppel, etc), I don't believe that Fidelty actually *has* granted a license. 
It appears that I have to go to Fidelty and get a license if I wish to use SAML. 
(Not picking on Fidelity - they are just first on the list of disclosers). 

 

Are people aware of 
this? Do users of SAML specifications actually know that they apparently aren't 
actually licensed to use the patents that Fidelity believes it has? Doesn't this 
(or rather, if lawyers were paying attention, *shouldn't* this) be a concern? I 
realize this TC operated under the legacy IPR policy - I wonder how that affects 
things. 

 

If a 
implementer/user of SAML were to actually be careful with their use of the SAML 
specs, they'd actually have to contact Fidelity to execute the license. I think 
this should be highlighted! If a contributor wants to contribute, and they don't 
offer a covenant or other blanket license (or a URL to a blanket license, etc), 
this potentially increases the friction for adoption. 

 

In an ideal world, 
there'd be one patent license that every patent-holder contributor would agree 
to -- I'm not naive to believe that would happen (or that OASIS could force that 
to happen), but I do believe in notice. Only as a persistent person who actually 
read the entire IPR disclosure page did I notice that to use SAML 2 I have to 
somehow negotiate a license with Fidelity.. Most people aren't going to do this 
and will be blissfully ignorant. 

 

I think as a 
practical matter, most patent holders who are contributing to OASIS specs don't 
really want to deal with individual licensing -- but OASIS IPR policy doesn't 
really push or guide patent holders to put up blanket unilateral licenses 
-- its up to each IPR holder to license (or covenant) in what ever way they 
want. 

 

THE 
PROPOSAL:

I think, in short, 
that OASIS should guide patent holders towards the lowest friction licenses 
possible by suggesting (not forcing) patent holders to use a standardized license (or at 
least suggest that patent holders post a "click-through" or unilateral license). 

 

   
-Gabe

 

P.S. If I'm wrong 
about any of the facts, please let me know ... I could have easily missed 
something. 

__________________________________________________ 
 

Chief Systems Architect 
Technical Innovation and Standards Management
Visa International 
Phone: 
+1.650.432.3696   Fax: +1.650.554.6817