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Subject: Re: [office-comment] Patent back door for Sun? (ODF all versions)


On Sun, Mar 1, 2009 at 7:16 AM, Bob Jolliffe <bobjolliffe@gmail.com> wrote:
> Hi Alex

> Microsoft, in contrast to most other key multinationals in this space,
> and which as you know enjoys a distinctly unproblematic relationship
> with the FOSS Community (not to mention JTC 1) , owns something like a
> 40% share of the entire G06F category of patents in SA.  Most of which
> may not be worth the paper they are printed on, having been obtained
> without examination at around $50 a piece,  but they do give us good
> reason to be more than a little concerned.  We worry more about all
> the loaded guns than the promises not not to shoot them.

As a practical matter, I doubt we will see Microsoft or any other big
vendor trigger Patent Armageddon in regard to implementation of ODF.
The case for patentability of software is weakest at the
interoperability interfaces, setting up a direct conflict between
patent and competition law. It pushes a legal button that could easily
trigger a ruling that the interoperability interface is non-patentable
subject matter. And the political backlash could be enormous, sweeping
software patents aside in toto.

Moreover, over the shorter term, Microsoft is currently under formal
investigation in the E.U. in regard to its business practices
involving MS Office, including charges involving both OOXML and ODF.
It is not a good time for Microsoft to raise a patent claim involving
ODF. And the longer a patent holder sleeps on its rights, the more
susceptible a later legal action is subject to defenses that the
patent holder waited too long to assert the claim. Legal defenses such
as implied waiver, estoppel, and laches come into play.

Assuming that Microsoft does add ODF to the list of standards covered
by its Open Specification Promise (OSP), the company made so many
public statements about the developer freedom bestowed by the OSP that
the company would likely be held to the public statements even if
Microsoft attempted to pursue a patent claim falling in one of its
many loopholes.

One may not safely induce others to rely on a public statement
encouraging them to take an action ---in this case to implement a
standard -- then sue them for having done so. If done deliberately,
then the mandatory elements of fraud (deliberate misrepresentation)
are likely satisfied in the U.S. On the other hand, if the public
statements were merely negligent, then we likely have the tort of
negligent misrepresentation. Those causes of action can be raised as
counter-claims and lead to award of money damages for the harm caused
by the misrepresentations.

Again as a practical matter, I think the greater patent hazard for ODF
implementations lies with those who do not participate in the
standard's development and who have no products that could form the
basis for an infringement counter-claim, the so-called "patent
trolls."

I've toyed with ideas for legislative fixes. The idea I like the best
so far is an amendment to the Agreement on Technical Barriers to Trade
that would:

-- Establish a set period of time that a draft standard must be
available for public review prior to adoption;

-- Establish a system for public notices that a draft standard is
available for public review, e.g., through a single international
publishing organ;

-- Require that patent holders object through a defined process by the
end of that period if they believe implementation of the standard
would infringe a patent they hold; and

-- Require that at the end of the period, implementation of the
standard is forever immunized from all patent claims not identified
through the defined process for objections; and

-- The same immunity would apply to later versions of the same
standard to the extent it incorporates the earlier version's
specifications.

The patent holder would retain rights outside the context of the
standard's implementation.

Best regards,

Paul E. Merrell, J.D. (Marbux)

-- 
Universal Interoperability Council
<http:www.universal-interop-council.org>


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