Rob Weir has an interesting article about “optional” parts of OpenXML.
Here I want to deal with a rather different point from most of those that Rob is making, namely the bearing that this has on MS’s OSP.
In OpenXML and patents - Part 1 and Part 2, I discussed whether MS’s Open Specification Promise (OSP) was (1) compliant with ISO/IEC requirements, and (2) compliant with best practice in this area, which I took to be what IBM has done.
My conclusion was that although there are differences between IBM, Sun and MS, they all seem to have adopted a broadly similar approach which goes some way beyond the ISO/IEC requirements. In other words, MS is compliant with best practice.
However, there was one important caveat which resulted from two exclusions in the wording of the MS OSP. One of these (inclusion by reference) need not concern us here. The other was that the OSP does not apply to those parts of the standard which are not “necessary”. I had not researched as carefully as I would like which those parts were, so I simply said that this was an important issue which needed to be clarified. Clearly, if significant parts of the standard are excluded from the OSP, then far from being compliant with best practice, it is not even compliant with the ISO/IEC requirements.
Rob’s basic assertion is: “Everything in OOXML is optional. This should be repeated until it sinks in. Everything in OOXML is optional.” If that is correct, then it would seem to follow that nothing is necessary and hence that the OSP is completely vacuous in relation to OpenXML and totally fails even to meet the ISO/IEC requirements.
Is this reasoning correct? Well, I don’t know.
We need to look carefully at some wording. Like most standards, OpenXML distinguishes between normative and informative parts. Roughly speaking the operative parts of the standard are the normative parts, whilst the informative parts are there to help you understand the normative parts. So that is not the distinction we are looking for, but it tells us that we can confine our attention to normative parts. Part 1 of this massive standard is relatively short (a mere 163 pages) and sets out “fundamentals”. Clause 2 (normative) explains “conformance”. A “conforming document” must meet various criteria (clause 2.4), but can (unsurprisingly) be almost arbitrarily short and empty of content. A “conforming application” “shall not reject any conforming documents of the type expected by that application … [and] shall be able to produce conforming documents”.
Developers are obviously interested in “conforming applications”, and the things that are necessary for a “conforming application” would seem to be the things that are “necessary” in the OSP language.
At first sight, essentially nothing positive is required of a conforming application. It must be able to produce conforming documents and it must not “reject” anything. A sufficiently empty document could certainly be made free of patent infringements, and if displaying nothing counts as “not rejecting” a document when it is opened, then an application could certainly do that without infringing any patents.
I wonder, however, whether a court would take that line. Suppose the application was intended to be a full-fledged document suite, so that it “expected” to be able to open any document, surely failing to do so in a useful way would count as “rejecting” the document. So if implementing the specification in the standard sufficiently to be able to open and properly display a complex document required use of MS patents, then surely these patents would be (in the words of the OSP) “necessary to implement only the required portions of [OpenXML]”? The fact is that I don’t know!
So I think I end up more or less where I got to a few days ago: it is completely unclear whether or not the OSP is sufficient or not, and the National Bodies need to insist as a matter of urgency that MS clarify the position.
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Yes, this is an urgency.
Another point:
In this document, page8:
http://www.noooxml.org/local–files/arguments/ECMA-responses.pdf
ECMA mentions:
Pursuant to such Patent Declaration Form, Microsoft has provided assurances to ITTF that any such essential claims vis-à-vis DIS 29500 will be available for full or partial implementations under three different approaches (from which an implementer can select). These options include Microsoft’s Open Specification Promise (see http://www.microsoft.com/interop/osp/default.mspx), Microsoft’s Covenant http://office.microsoft.com/en-us/products/HA102134631033.aspx) and a royalty-free Reasonable And Non-Discriminatory (RAND) license.
Where can I get a copy of this RFRAND licence?
Short answer: I don’t know. I don’t even know if it exists yet.
You are right, the Ecma response document Ecma/TC45/2007/006 does mention 3 possibilities on p8 lines 23-28 (near the end of 2.2): the OSP, the older covenant not to sue, and an unreferenced RAND.
The covenant not to sue does not help much because it also has the wording “necessary to conform” to OpenXML.
However, I doubt that the RAND will make any difference to the problem I have highlighted because if you read the lead-in in 2.2 of the response document it has “related to licensing of any of its essential patent claims that are necessary to implement [OpenXML]”.
Given the ITTF’s track record in ignoring 12 NB’s contradictions in the initial 30-day period, I do not find it particularly comforting that they have had discussions on patents with MS and Ecma (also mentioned in 2.2).
Microsoft has chosen to provide implementers with three different options from which they can choose.
Some companies prefer to rely on a CNS or patent pledge.
Some companies (sometimes that have a large commercial operation) prefer to enter into a bi-lateral license agreement as opposed to relying on a CNS or OSP-like promise.
By offering all three choices, Microsoft has tried to accommodate the different preferences of different implementers that may be based in part on differing business models.
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[…] is whether the OSP actually covers all relevant patents. The doubt, which I raised yesterday and the day before, is whether it covers any patents needed for the many “optional” parts of the […]
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