Stephen McGibbon of MS points out, tactfully, (in a comment to an earlier article here) that I have not read the MS Open Specification Promise (OSP) carefully enough. At the end it has the words:
… this Promise also applies to the required elements of optional portions of such specifications.
So, just to be clear, let us go through this again. The OSP takes the form of a promise not to sue where an implementation of OpenXML requires the use of a MS patent and that patent is used without permission. This approach is currently the state of the art. It is used by MS, IBM and maybe others. It has several advantages for third parties:
(1) the OSP applies to a long list of specifications, not just OpenXML, so people only have to get used to one wording;
(2) no consultation with MS is required, the promise applies automatically (and under most systems of law is legally enforceable when a third party acts in reliance on it);
(3) it is royalty-free (whereas ISO/IEC, for example, only require reasonable royalties negotiated in a non-discriminatory way).
I have discussed in an earlier article the issue, which many have raised, that it does not apply to future versions of the standard. My conclusion is that whilst it would be good if MS was prepared to make this extension, I can understand its reluctance, and as far as I know no one else has done it (certainly the IBM and Sun promises on ODF do not appear to do so).
So the remaining question 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 standard.
Starting at the beginning, the OSP is:
… not to assert any Microsoft Necessary Claim against you … [in relation to] any implementation to the extent it conforms to [a specification in the list, which includes Ecma 376, the current version of OpenXML] … ‘Microsoft Necessary Claims’ are those [patent claims] … necessary to implement only the required portions of [Ecma 376] that are described in detail and not merely referenced in [Ecma 376] … this Promise also applies to the required elements of optional portions of … [Ecma 376].
Despite its inordinate length, Ecma 376 does have several elements which are not “described in detail” but “merely referenced”, typically legacy features. So that is certainly a problem.
But leaving that aside for a moment, the critical wording is that coverage extends to:
those [patent claims] necessary to implement only the required portions of [Ecma 376] … this Promise also applies to the required elements of optional portions of … [Ecma 376]
Certainly I deserve some humble pie (perhaps someone could supply it, I am not sure I have ever seen it, I believe it is made from deer). But whereas I was earlier fairly clear what the wording meant and that it did not cover enough, now I am just mystified. What on earth does it mean?
“only the required portions” plus the “required elements of the optional portions”
Evidently, it is envisaged that the “portions” of a specification can be classified as “required” or “optional”. But the optional portions can be further subdivided, so that they contain some “required elements”. Unfortunately, it is certainly a possible view, as discussed here and here that essentially everything in Ecma 376 is optional, so if this right, the OSP still covers no patents relating to it.
Do not get confused between “necessary” and “required” (which is easy to do)! The OSP only covers patent claims which are “necessary” for implementing the specification. That is perfectly reasonable. So that is not what “required” is on about. It is a property of the specification not of any related patents.
But the clear implication of Stephen McGibbon’s comment is that MS was not simply intending to exclude all optional parts of OpenXML from the OSP. So what on earth was it intending to do? And there is still the problem left aside above about legacy features not fully described.
So, unless I am still missing something or being stupid (more pie), I come back to my earlier conclusion that 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.
{ 7 } Comments
http://www.phrases.org.uk/meanings/eat-humble-pie.html
Thanks for the reference!
“Mrs Turner came in and did bring us an Umble-pie hot out of her oven, extraordinarily good.”
Hmmm, maybe not too bad at all, it certainly sounds better than crow, so lucky I am a Brit!
>So, unless I am still missing something or being stupid (more pie), I come back to my earlier conclusion that 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.
Why do they? I think that it is abundently clear that the OSP goes way beyond what is required for an ISO standard. Ultimately each and every implementer has to satisfy themself, and the idea that NBs or ISO can do this for them is plainly misleading.
As I’ve commented elsewhere on your blog, there are three options implementers can consider. The CNS, the OSP, or the option to enter into a bi-lateral license agreement - one size isn’t going to fit all - just as in the case of document formats themselves.
Could we just stick to one thing at a time? Which parts of Ecma 376 does the OSP cover? It apparently covers “only the required portions” plus the “required elements of the optional portions”. What does that mean? Since Ecma 376 states that a conforming implementation does not have to cover anything, there are apparently no “required portions” and no “required elements”, so the OSP is completely void in relation to Ecma 476. In that case it certainly does not meet ISO/IEC requirements. If that is not what it means, could MS please make an official clarification asap.
/* Why do they? I think that it is abundently clear that the OSP goes way beyond what is required for an ISO standard. */
That is irrelevant as ISO does require rand as the bare minimum.
Is the OSP usable as evidence in court? Is a “promise” legally proof. If I promise to marry someone, I am not bound. If I promise you to ignore OOXML I can still use it. So how much is a promise worth, with a worldwide perspective? Is it legally proof.
Why doesn’t Microsoft offer the same conditions as SUN does?
Well, I am not qualified to practise law anywhere, so what follows is not legal advice you should rely on. But yes, it is fairly clear in most jurisdictions that the OSP is legally binding. The laws on promises to marry are quite different.
Why not the same as Sun? Well, I think the major software companies are still feeling their way on this. The OSP would be excellent except for the problem about optional elements of the standard. Most standards do not have such widespread optional elements, so it is possible that the problem is inadvertent. But in that case MS need to vary the OSP in this case.
There is no way of combining patents with open source software. There will always be a requirement for an application implementing the open source specification to use technologies protected by a patent.
It is impossible for MS to abandon their patents, as there is no guarantee that other companies would not attept to undermine them, and at the same time they are under pressure to adhere to open standards.
To create an open source standard, which still includes their own inventions and those which they have acquired, they need to turn a blind eye the use of their IP. There is no guarantee, should they find their market position undermined by these uses of their IP, that their future leadership will not have a change of heart and begin to pursue these patents and take civil action against non-profit organisations which have no method to defend themselves.
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