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


Hi Alex

2009/3/1 Alex Brown <alexb@griffinbrown.co.uk>:
> As I understand it, the IPR regime governing ODF is in part comprised of
> Sun's non-assertion statement (http://is.gd/liv1). According to this,
>
> "Sun irrevocably covenants that [...] it will not seek to enforce any of
> its enforceable U.S. or foreign patents against any implementation of
> the Open Document Format for Office Applications (OpenDocument) v1.0
> Specification, or of any subsequent version thereof ("OpenDocument
> Implementation") in which development Sun participates to the point of
> incurring an obligation, as defined by the rules of OASIS [...]"
>
> We learn about such an "obligation" from the OASIS rules
> (http://is.gd/livR), and that, for a party withdrawing from a TC:
>
> "A TC Party that has incurred a Participation Obligation prior to
> withdrawal continues to be subject to its Participation Obligation but
> only with respect to OASIS Draft Deliverable(s) approved more than seven
> (7) calendar days prior to its withdrawal."
>
> IANAL, but is a correct reading of this that if Sun withdraws from the
> ODF TC, then all outputs of the TC (and implementation of outputs)
> dating from 7 days prior to that date, and extending into the future,
> are fully subject to any patent claims Sun might then make? (I notice
> the verb form here is "participates", not "has participated"). Perhaps a
> more legally-minded reader could clarify ...
>

I think the keyword here is "irrevocably", which presumably has a
meaning outside of the longevity of Sun's participation in OASIS..

> If this is the case, is this acceptable to OASIS? I doubt it would be
> acceptable to JTC 1 (newly sensitized to IPR issues by events
> elsewhere), or to the "FOSS community", who enjoy a distinctly
> problematic relationship with Sun.

I can't speak for the FOSS community other than perhaps to observe
that I think the relationship has actually been pretty good.  Of
course in reality the community is really many communities, hence the
qualifier.  Still I think the insinuation you are hinting at is really
off target and inappropriate.

>
> What is needed here is a clearly-stated, perpetual waiver of patent
> rights from all parties who potentially hold them, that applies to all
> ODF drafts, specifications and standards published by OASIS embodying
> those technologies; not a hard-to-parse, qualified and conditional
> waiver. DIS 29500 has taught us that such clarity is necessary.
>

Generally I do agree with you  (Not that we ever got the clarity we
sought regarding DIS 29500).  But I too am in general sceptical of all
of these promises, covenants and what have you.  I doubt even if you
would get right the clear and unambiguous waiver you have in mind.  I
think they are fiendishly difficult to get right.  And they seem
always qualified in one way or another.   But yes, in general, I will
always welcome the greatest clarity and lack of ambiguity on this.

In South Africa at least, such inventions are not patentable subject
matter.  And Sun do not have any such patents filed (unless they have
slipped some in while I was not looking).  It is for this reason more
than any other, that I do not fear any deficiencies that might exist
in their covenant.  Granted that this does not help our US colleagues.

> Enlightenment / reassurance please!

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.

Regards
Bob

>
> - Alex.
>
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