In other words, Sun goes a little beyond IBM and MS, in that their pledge automatically applies to later versions of the standard so long as Sun remains involved in the standards process, whereas the IBM and MS pledges only apply when they add the new version to the list.

So on this point MS is not out of line.

I also agree that it is interesting that Simon Phipps is apparently in favour of strengthening the Sun language so that everyone would (indisputably) get permission on X (but not Y) in v3. It would be excellent if Sun could be persuaded to make that change, and even better if IBM and MS could be persuaded to follow suit.

By the way - thank-you for your blog - it has removed the fog around voting procedures and other areas very well indeed.

So the scenario is that X in v1.0 requires a Sun patent, after v2 Sun stops participating and v3 is approved. It still contains X. Does Sun’s pledge still cover X, or is it entitled to enforce all its patent rights, including those relating to X, because it stopped participating?

It is clear that if B produces software which uses the v1.0 or the v2 format, then it is still entitled to rely on the pledge. But suppose it produces software which uses the v3 format, can it rely on the pledge for X? [It obviously cannot rely on the pledge for technology Y if that is covered by a Sun patent but was not in the standard before v3 when Sun stopped participating.]

The argument that it cannot rely on the wording is that it only covers “any subsequent version … in which Sun participates”. v3 is not such a version, so it does not cover implementations of v3.

The argument that it can rely is presumably that v2 is a subset of v3 and so that subset is covered.

I am inclined to agree with you that the matter is far from clear. My experience with UK litigation is that even where you are totally confident about the legal position you can still lose 10-20% of the time. Here there seems enough ambiguity for an experienced litigant to assess the chances of losing as rather higher. So yes, I think it would be highly desirable, in the event that Sun stops participating in ODF revisions, for it to clarify the position.

Sun’s pledge says “…or of any subsequent version thereof (”OpenDocument Implementation”) in which development Sun participates to the point of incurring an obligation,…”

“For example, if ODF 1.0 used method ‘foobar’ patented by Sun, the current wording means that Sun can enforce rights in relation to ‘foobar’ in ODF 3.7 if Sun have not participated in 3.7’s development. All they simply need[ed] to say is that any technology used in a version developed with the aid of Sun can be freely used in a later version not developed with the aid of Sun, but any new technologies in later versions not developed by Sun are susceptible to litigation. ”

The issue is that if Sun do not participate in the development of a subsequent version of ODF, Sun can enforce rights associated with intellectual property used in earlier versions that Sun did participate in the development of.

This isn’t to disagree with your conclusion - Microsoft does seem to be in line with current industry practice. However, current industry practice doesn’t look as nice as it could or should be.

It is interesting that Simon Phipps, Chief Open Source Officer of Sun Microsystems, says that this specific issue was raised when discussing the pledge with Sun’s lawyers, and their interpretation was at variance with the reading given in the Wikipedia talk page above.

As far as I can tell, no-one else has picked up on this - not even Groklaw!

However, the Sun pledge does have a caveat about subsequent versions (that Sun has to have participated in their development).

I think I stick by the conclusion in the article - that MS is not, on this point, significantly out of line with best practice.

http://en.wikipedia.org/wiki/Talk:OpenDocument#Sun.27s_Patent_Pledge

you’ll see someone arguing that Sun’s Patent Pledge is not as unencumbered as it could and should be.

Essentially: “It says that Sun “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”. That says nothing about later specs. Perhaps I’m just being over-suspicious, but it seems to me that Sun could enforce patents that it doesn’t enforce against v1.0 against a later spec - e.g v3.17 or whatever. I’d prefer your interpretation, but my natural suspicion makes me think otherwise. I’m sure the wording has been subject to very careful legal approval.”.

… mission accomplished.