[ebxml-cppa] proposed statement draft

[James Bryce Clark <jamie.clark@mmiec.com>]

At the time of the last specification advancement vote, in order to reach a 
comfort level to permit broad consensus prior to voting, we discussed the 
need to adopt some kind of statement to indicate awareness of user 
community issues with the IBM IPR claims against CPPA, and appropriate 
disclaimers regarding the state of those claims.
I was asked to provide a draft.  Here it is.  Regards   Jamie Clark

===

DRAFT

The ebXML CPPA Technical Committee recently voted to advance its 2.__ 
specification for OASIS membership review as a candidate 
standard.   Consistent with that vote, we have no reservations regarding 
the substantive quality or technical readiness of the 
specification.   However, our own review process occurred during the same 
period as an unexpected IPR declaration of patent claims made by IBM in 
March 2002, subsequent strong public reactions to that declaration, and 
several rounds of negotiation and discussion.  IBM issued and posted a 
revised declaration on May 16, 2002, and in response to our further 
questions provided an additional explanatory statement on May 30th.

We have made significant progress in discussions with IBM and the ebXML 
community, with effective assistance from OASIS staff.   Ultimately we 
voted unanimously on May 31 to advance the specification, based on our 
assessment that the issues raised by the claims are being negotiated 
appropriately, and that IBM is working with OASIS in good faith to attempt 
to define final terms satisfactory for our user communities.   However, not 
all of the issues are yet resolved, and the final language for some of the 
restrictions may not have been reached.   The TC notes that its advancement 
of the standard does not indicate an evaluation of the IBM claims, nor an 
endorsement or guarantee of the commercial suitability of the eventual IPR 
terms.   Refinement of those terms is continuing.  The TC reserves the 
right to withdraw the standard if final permissions and terms appropriate 
to ebXML's goals cannot be obtained.

The TC is concerned about several yet unresolved aspects of the current IPR 
declarations.   The absence of permission to develop nonprofit derivative 
works from the specification continues to impair several significant open 
source development efforts.  We hope to obtain clearer use permission for 
such efforts consistent with conventional open source development.

The timing of the declarations is also unfortunate.   IBM made substantial 
donations in 1999 of technical work that then appeared to be free of 
claims.   That work was considered in the formulation of the final approved 
ebXML standards throughout 2000 and 2001.  Only in 2002 was it disclosed 
that IBM discovered that relevant patents and patent applications had been 
in process throughout that period.   A substantial part of the ebXML 
community relies on low-cost vendor-neutral standards use and 
tools.   Timely earlier disclosure of the claims might have permitted a 
less disruptive exclusion of, or negotiation regarding, patent-impaired 
work.  Appropriate action in light of those impairments, and refinements to 
the IPR rules to reduce delayed-disclosure loopholes in the future, may be 
the subject of further analysis by OASIS members.

===

~ James Bryce Clark
~ VP and General Counsel, McLure-Moynihan Inc.   www.mmiec.com
~ Chair, US ABA Business Law Subcommittee on Electronic Commerce
~ www.abanet.org/buslaw/cyber/ecommerce/ecommerce.html
~ 1 818 597 9475   jamie.clark@mmiec.com   jbc@lawyer.com
~ This message is neither legal advice nor a binding signature.  Ask me why.