[ebxml-cppa] Action item regarding TC comment on IBM claims

[James Bryce Clark <jbc@lawyer.com>]

    Our CPPA TC voting meetings normally occur on the
second Tuesday of the month -- in this case 11 October.   We
are now in the month-long voting period for OASIS member approval of the
CPPA 2.0 specification.  If the TC is going to comment in any way on
the IBM patent claims that intervened after approval of v.1.0, during our
work on v.2.0, the time to do so meaningfully would be now.  

    We first advanced the 2.0 standard by TC vote in
April, quite soon after IBM announced (in March 2002) its claims (dating
back to filings in late 2000 or early 2001).  A fairly large number
of ebXML participants were concerned by the claims, in view of what all
assumed was a claim-free donation at the time of ebXML plenary
approval.   EbXML's coordinating committee negotiated a revised
IPR claim statement with IBM at the time, and we voted unanimously to
advance the work, after discussing and confirming that we would later be
able to address the IPR issue.  (See, for example,  
http://lists.oasis-open.org/archives/ebxml-cppa/200204/msg00090.html.)

    In order to reach a comfort level for broad consensus
prior to voting, we discussed the need to adopt some kind of statement to
indicate TC awareness of user community issues with IPR claims against
CPPA, and appropriate disclaimers regarding the state of those
claims.   I circulated a rough draft on 6/20, in
http://lists.oasis-open.org/archives/ebxml-cppa/200206/msg00036.html. 
A modified version is repeated below.   I have updated the
dates and softened the text.   As we discussed then, it seemed
better to wait a few months to see how the situation progressed, and
return to this issue when the OASIS vote opened.   

    That time has arrived.  Since May, some
developers have stopped work due to uncertainty over the rights. 
EbXML's JCC is seeking further clarification from IBM this month about
written license requirements, derivative works and open source
issues.   I think a statement of this kind is still
advisable.  I do not wish users to infer from TC or OASIS approval
either that our participants concede the patent claims --
or that we are blind to the obstacles that IPR complexity creates
for SMEs and nonprofit developers.   In view of the detailed
ebXML discussions about SOAP in January 2001, personally I am not certain
that CPPA 1.0 would have been adopted, if the then-existing but
undisclosed IPR claims were known.  Please note that this is
without regard for who holds the claim: ebXML's initial
requirements dictated encumbrance-free technology.

    I will move that the TC adopt the statement below, at
its next voting meeting.   I do not feel strongly about the
exact text, and welcome suggestions to improve it.   We can
certainly discuss it at tomorrow's (4 October) nonvoting meeting if
desired.   

Best regards   Jamie Clark

~ James Bryce Clark
~ Chair, American Bar Association Business Law Subcommittee on
E-Commerce
~ 
www.abanet.org/buslaw/cyber/ecommerce/ecommerce.html
~ 1 310 293 6739  jbc@lawyer.com

====
DRAFT STATEMENT

The ebXML CPPA Technical Committee unanimously approved its 2.[0]
specification for submission to the OASIS membership as a candidate
standard.   We have no reservations regarding the substantive
technical quality of the work.  However, in the midst of our own
review process, we received an unexpected IPR declaration of patent
claims made by IBM in March 2002.  Substantial public reactions and
several rounds of discussion followed.  IBM issued and posted an
improved revised declaration on May 16, 2002, and in response to further
questions, provided supplemental explanatory text 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 the broad user
community intended for ebXML.  However, not all of the issues are
yet resolved.  Our vote to advance the standard does not imply an
evaluation of IBM's claims, nor an endorsement or guarantee of the
commercial suitability of the eventual IPR terms.   

The TC is concerned about several aspects of the May 2002 IPR
declarations.    Earlier disclosure of the claims, which
existed during the phase 1 ebXML work but were not disclosed until after
its approval, might have permitted easier resolution.  The May 2002
declarations retain a written license application requirement (which is
not always included in similar circumstances), and do not permit
development of derivative works from the specification.  These
strictures have caused several current significant open source
development efforts to postpone work, and may impair ebXML toolmaking
generally.  EbXML's original requirements focused on wide deployment
and SME needs, and sought to create freely available and unencumbered
technologies.  We recommend that OASIS review the suitability of
encumbered standards, types of implementation licenses, and requirements
for timely claim disclosure, in standards such as ebXML that are intended
for wide public adoption.

DRAFT
====