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Subject: RE: [chairs] Patent license friction...

Sun's abstract sounds fancy - but when you really analyze what its describing - it boils down to a snapshot of what is the entrenched reality!?!  Prior to computers I'm sure this is exactly how the Army and other services wrote procedures to handle access to confidential information for example for the past 100 years.
We seem to have gotten ourselves into a position somewhat akin to a medical doctor finding that in addition to patents on drugs - now patents on procedures and practice are allowed too - so if he recommends that his patient lose weight and exercise more - that is actually covered as a patent!!  Who wants to wager $5 that if you run a search on PTO for patented computer system for weight loss management - you'll find something...
The simple answer beckons - put a moritorium on the PTO being able to issue software patents - but asking the Bar Association to review this is like asking a drug addict to devise how they can take drugs in a more socially acceptable way....
At least I enjoyed reading Alice in Wonderland.

-------- Original Message --------
Subject: RE: [chairs] Patent license friction...
From: John Messing <jmessing@law-on-line.com>
Date: Fri, April 28, 2006 9:21 am
To: "David RR Webber (XML)" <david@drrw.info>
Cc: Chairs OASIS <chairs@lists.oasis-open.org>, "ext Wachob,Gabe"
<gwachob@visa.com>, Frederick Hirsch <frederick.hirsch@nokia.com>

Hi David and Gabe:

The below-referenced U.S. patent was awarded in 2005 to Sun Microsystems
as assignee for "Single sign-on framework with trust-level mapping to
authentication requirements"


I think Gabe's original question is complicated by the period in which
an OASIS standard was approved: one must keep in mind whether it
occurred under a legacy IPR mode or one of the newer IP modes that are
designed to be adopted by TC's by no later than next year.

The American Bar Association's Science and Technology Law Section has a
committee that is working on the relationship between patents and
standards work.

Currently IMHO there is no easy or simple answer to Gabe's inquiry.

John Messing

> -------- Original Message --------
> Subject: RE: [chairs] Patent license friction...
> From: "David RR Webber (XML)" <david@drrw.info>
> Date: Thu, April 27, 2006 8:43 pm
> To: Frederick Hirsch <frederick.hirsch@nokia.com>
> Cc: Chairs OASIS <chairs@lists.oasis-open.org>, "ext Wachob,Gabe"
> <gwachob@visa.com>
> Gabe,
> Of course the other option is to have TC work that precludes patented
> material.
> I still do not see any IPR policy that specifically supports that option
> - other than the legacy policy.
> To my knowledge the BOD - despite Patricks assertions that OASIS would -
> still has made no effort to accommodate the OSI concerns in this regard
> nor arranged any conference calls or interactions with OSI to move toward
> having OASIS TC work able to comply to OSI licensing needs.
> For the life of me I cannot see anything in SAML that anyone could
> legitimately claim to have a patented invention around.  But then again
> people have patents on the menu key sequence for bank ATMs - clearly a
> ground breaking invention - key pad sequences.  Would be interesting to
> know exactly what about SAML is using such a unique mechanism that it is
> a patented system?
> Assuming the patent may fall under the not-really-an-invention-at-all
> category - hopefully the SAML TC can re-factor their work so that it does
> not rely on any dubious or questionable patents in the first place...
> DW
>  -------- Original Message --------
> Subject: Re: [chairs] Patent license friction...
> From: Frederick Hirsch <frederick.hirsch@nokia.com>
> Date: Thu, April 27, 2006 5:51 pm
> To: "ext Wachob, Gabe" <gwachob@visa.com>
> Cc: Frederick Hirsch <frederick.hirsch@nokia.com>, "Chairs OASIS"
> <chairs@lists.oasis-open.org>
> Gabe
> I believe the SSTC is operating under the legacy IPR policy. TCs  
> under the current (new) policies incur much clearer and well-
> understood obligations, which should go a long way toward reducing  
> friction and confusion.
> In general I believe the reason law tends to be difficult is that it  
> is difficult to clearly state in language precise rules where the  
> concerns of various parties are met. The new OASIS policy attempts to  
> do this as clearly as possible, specifying the "features" of the  
> license that may be used in the different IPR modes, providing more  
> clarity on the licenses that may be obtained.
> However, within the scope of the OASIS policy it is the right of a  
> patent holder to write their license. Likewise it is not unreasonable  
> to have more than one means of obtaining a license from a patent  
> holder, although it may be in everyone's interest to make it easier.
> In the specific example, I would take the "would" to indicate that a  
> license will be granted if and when needed, which seems reasonable.  
> I'd recommend consult your attorney for advice if you haven't already  
> done so.
> However, I believe the current IPR policy is a big step forward  
> toward clarity. However, as you note, it is realistic to expect to  
> contact patent holders for licenses as needed.
> Thanks
> regards, Frederick
> Frederick Hirsch
> Nokia
> [1] http://www.oasis-open.org/who/intellectualproperty.php
> On Apr 27, 2006, at 4:59 PM, ext Wachob, Gabe wrote:
> > 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).
> >
> >    -Gabe
> >
> > P.S. If I'm wrong about any of the facts, please let me know ... I  
> > could have easily missed something.
> > __________________________________________________
> > gwachob@visa.com
> > Chief Systems Architect
> > Technical Innovation and Standards Management
> > Visa International
> > Phone: +1.650.432.3696   Fax: +1.650.554.6817
> >
> >

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