Do you love Microsoft?

What happens if one vendor has Intellectual Property Rights (IPR) relating to a draft standard? How does that impact on the standards process? Should a standard be approved if compliance would require a licence from the vendor?

In the case of ISO/IEC there is an agreed Common Patent Policy which requires that the patent holder of any known patent must be “willing to negotiate licenses with other parties on a nondiscriminatory basis on reasonable terms and conditions”. Otherwise the standard shall not include “provisions depending on the patent”. This is elaborated further in a .pdf file. It is envisaged that the reasonable terms may include a royalty. It is also envisaged that negotiations may be necessary in each case and that these will take place on a normal bilateral basis, without involving ISO/IEC.

IPR also includes copyright. But it is assumed that if one vendor has existing code implementing the standard, other vendors have no right to copy that code. They are expected (reasonably enough) to write their own code.

In practice, however, the major vendors have gone beyond the ISO/IEC requirements in the case of software. There has been a gradual development over a period of years, so that IBM, MS and Sun have all adopted the policy of a “covenant not to sue”. This has the (substantial) advantages for those who wish to use the standard in question that no royalties are required and no negotiations are required.

IBM has adopted a standard wording in its Interoperability Specifications Pledge which covers all the (many) cases where it promises not to sue. MS has likewise adopted a standard wording in its Open Specification Promise. It is possible that Sun has done the same, but I have not yet found it. The wording that covers its patents related to ODF is in its OpenDocument Patent Statement on the Oasis site.

It is clear that the three companies have studied each other’s promises carefully and they are closely similar, although not identical. This is acknowledged explicitly in Jason Matusow (from MS)’s blog:

… there is a history to the concepts that tracks back to IBM and SUN first. Both of them had released a Covenant Not To Sue for specifications before MS released its OSP. In fact, we read their language very carefully as we approached the drafting of the OSP. The whole point here is to create an environment where a specification may be implemented by anyone, no matter what development model or source code license they may choose. This can happen in such a way that the patents necessary for implementation are a) available for use at no charge and in no conflict with various licensing models, and b) are retained by the rights holder so they may be used in other ways potentially for revenue-generating purposes. The OSP, or CNS, or ISP - all amount to the same conceptual approach which is the idea of enabling implementations while still respecting IP rights … In general, this is a really positive thing.

I entirely agree with Jason that this is positive.

In the context of OpenXML there has been a good deal of discussion of the differences. There seem to be two main differences: (1) the extent to which the promises cover future changes in the standards in the ordinary course of maintenance; and (2) the extent to which the promises cover non-mandatory parts of the standards.

This article is already fairly long and it is now fairly late, so I will defer discussion of these two points until tomorrow!