Re: [office-comment] Patent back door for Sun? (ODF all versions)

[robert_weir@us.ibm.com]

"Alex Brown" <alexb@griffinbrown.co.uk> wrote on 03/01/2009 08:17:27 AM:

> 
> As I understand it, the IPR regime governing ODF is in part comprised of
> Sun's non-assertion statement (http://is.gd/liv1). According to this,
> 
> "Sun irrevocably covenants that [...] it will not seek to enforce any of
> its enforceable U.S. or foreign patents against any implementation of
> the Open Document Format for Office Applications (OpenDocument) v1.0
> Specification, or of any subsequent version thereof ("OpenDocument
> Implementation") in which development Sun participates to the point of
> incurring an obligation, as defined by the rules of OASIS [...]"
> 

We of course has no comment on what promises a vendor makes outside of the 
OASIS process.  These are all above and beyond what OASIS requires.

> We learn about such an "obligation" from the OASIS rules
> (http://is.gd/livR), and that, for a party withdrawing from a TC:
> 
> "A TC Party that has incurred a Participation Obligation prior to
> withdrawal continues to be subject to its Participation Obligation but
> only with respect to OASIS Draft Deliverable(s) approved more than seven
> (7) calendar days prior to its withdrawal." 
> 
> IANAL, but is a correct reading of this that if Sun withdraws from the
> ODF TC, then all outputs of the TC (and implementation of outputs)
> dating from 7 days prior to that date, and extending into the future,
> are fully subject to any patent claims Sun might then make? (I notice
> the verb form here is "participates", not "has participated"). Perhaps a
> more legally-minded reader could clarify ...
> 

IANAL either, but I note that you are failing to distinguish contribution 
obligations from participation obligations.  You are also failing to 
distinguish that the date of significance is the date of the ballot to 
approve an OASIS Draft Deliverable.  For example, the TC approved more 
than 7 days ago a Committee Draft.  So participation obligations have 
already been triggered for the contents of that draft.  Contribution 
obligations are incurred at the time of contribution.

> If this is the case, is this acceptable to OASIS? I doubt it would be
> acceptable to JTC 1 (newly sensitized to IPR issues by events
> elsewhere), or to the "FOSS community", who enjoy a distinctly
> problematic relationship with Sun.
> 

I fail to see the concern.  If a company does not participate in the TC at 
all, we expect nothing of them.  If they withdraw at a sufficiently early 
point, the are obligated for their own contributions, but not for the 
contributions others have made. 

You can see why this would be necessary.  Suppose Company X had some great 
innovation (for sake of argument) in compression, and I came in one day 
and specified that new compression algorithm in a draft.  Company X might 
think this is fine.  But it is certainly within their rights to say "No, 
we don't want to give this away for free".  If they withdraw from the TC 
in a timely fashion then they are not obligated for that compression 
algorithm.

You can see the list of obligated members here:  
http://www.oasis-open.org/committees/daycount/tc/office.html

Although there is wiggle room up to 7 days after a draft is approved, by 
the time the Committee Specification is voted on as an OASIS Standard, and 
well before it is submitted to JTC1, both the contents of the standard and 
the obligated members are entirely fixed. 

> What is needed here is a clearly-stated, perpetual waiver of patent
> rights from all parties who potentially hold them, that applies to all
> ODF drafts, specifications and standards published by OASIS embodying
> those technologies; not a hard-to-parse, qualified and conditional
> waiver. DIS 29500 has taught us that such clarity is necessary.
> 

The IPR policy is written by lawyers for lawyers. It will never be as 
clear to the layperson as you might like.  But it has been reviewed and 
reviewed by many lawyers and is the basis for many widely used global 
standards.   You will need more than vague ennui to get anyone to change a 
word of it.

In any case, an OASIS TC has no direct control over IPR policy at OASIS. 
All we can do is pick, when we create or revise our charter, from a menu 
of available IPR modes.  The ODF TC operates under the "RF on Limited 
Terms" mode.  If you have any concerns with that, then you or your NB 
should bring that up directly with OASIS.  If your concern is with Sun's 
non-assertion language, then you should raise this directly with them.


-Rob