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chairs message

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Subject: Patent license friction...

This is a real basic questions that has been nagging at me for quite a while.
Lets say I want to use a OASIS specification (lets take SAML 2.0 - I'm not picking on them - but it makes a good illustration). I note that there are various IPR disclosures at http://www.oasis-open.org/committees/security/ipr.php - and some of these disclosures state that the patent owners *will* license their Patents for the purpose of SAML. Some express covenants not to assert claims. Some point to blanket licenses on web sites.
If I were a lawyer I would find this situation a) confusing, b) scattered and c) potentially dangerous. For example, on that page, Fidelty states that it "would grant to any other person or legal entity a royalty-free, nonexclusive, nontransferable, license under Fidelity's NECESSARY CLAIMS to implement the SAML v2.0 OASIS Standard, and sell, promote or otherwise distribute the resulting implementation. "
Note the word "would". I don't see that Fidelty actually *has* granted a license. Thus, while they would now have a hard time enforcing the patent (given theories of estoppel, etc), I don't believe that Fidelty actually *has* granted a license. It appears that I have to go to Fidelty and get a license if I wish to use SAML. (Not picking on Fidelity - they are just first on the list of disclosers).
Are people aware of this? Do users of SAML specifications actually know that they apparently aren't actually licensed to use the patents that Fidelity believes it has? Doesn't this (or rather, if lawyers were paying attention, *shouldn't* this) be a concern? I realize this TC operated under the legacy IPR policy - I wonder how that affects things.
If a implementer/user of SAML were to actually be careful with their use of the SAML specs, they'd actually have to contact Fidelity to execute the license. I think this should be highlighted! If a contributor wants to contribute, and they don't offer a covenant or other blanket license (or a URL to a blanket license, etc), this potentially increases the friction for adoption.
In an ideal world, there'd be one patent license that every patent-holder contributor would agree to -- I'm not naive to believe that would happen (or that OASIS could force that to happen), but I do believe in notice. Only as a persistent person who actually read the entire IPR disclosure page did I notice that to use SAML 2 I have to somehow negotiate a license with Fidelity.. Most people aren't going to do this and will be blissfully ignorant.
I think as a practical matter, most patent holders who are contributing to OASIS specs don't really want to deal with individual licensing -- but OASIS IPR policy doesn't really push or guide patent holders to put up blanket unilateral licenses -- its up to each IPR holder to license (or covenant) in what ever way they want.
I think, in short, that OASIS should guide patent holders towards the lowest friction licenses possible by suggesting (not forcing) patent holders to use a standardized license (or at least suggest that patent holders post a "click-through" or unilateral license).
P.S. If I'm wrong about any of the facts, please let me know ... I could have easily missed something.

Chief Systems Architect
Technical Innovation and Standards Management
Visa International
Phone: +1.650.432.3696   Fax: +1.650.554.6817


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