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Subject: Prelim minutes of 6/7 teleconf
Prelim minutes are attached. -- ---------------------------------------------------- Tom Rutt email: tom@coastin.com; trutt@us.fujitsu.com Tel: +1 732 801 5744 Fax: +1 732 774 5133Title: Minutes of OASIS WS-RX Teleconference 6/07/2007
Prelim Minutes of OASIS WS-RX Teleconference June 7, 2007
Start Time:4:00 PM Eastern Daylight Time
Pqul acted as chair.
Textual Conventions
Ø Action Item Motion § Resolution 1 Roll CallFrom Kavi: meeting is quorate Tom Rutt agreed to take minutes. 2 Agenda ApprovalAgenda 1) Roll Call 2) Review and approval of the
agenda 3) Approval of the May 17th 2007
meeting minutes Preliminary here: http://www.oasis-open.org/apps/org/workgroup/ws-rx/email/archives/200705/msg00019.html 4) AI Review http://www.oasis-open.org/apps/org/workgroup/ws-rx/members/action_items.php 5) Dealing with the No vote in the
WSRM 1.1 OASIS standard vote 6) Next meeting 7) Any other business 3 Approval of the 5/17 Minutes;http://www.oasis-open.org/apps/org/workgroup/ws-rx/download.php/24303/MinutesWSRX-051707-b.htm Bob F moved to approve 5/17 minutes, Tom R seconded.
§ No objections, minutes of 5/17 approved. 4 AI Reviewhttp://www.oasis-open.org/apps/org/workgroup/ws-rx/members/action_items.php #0132: Sanjay to update the public home page to add links to
the documents out for standard vote Owner: Sanjay Patil Status: Still Open 5 Dealing with the No vote in the WSRM 1.1 OASIS standard voteCompany:
The OpenDocument Foundation,
Inc.* Vote:
No Comment:
Recently the OpenDocument Foundation cast a
“no” vote on the OASIS WS-Reliable Messaging ("WS-RM") specification.
Our reason is that we strongly object to the IPR licensing model, “Royalty Free
on
Introduction
As a general matter the Foundation has historically opposed the use of
software patents to limit developers' rights to implement supposedly
"open" software communications protocols and file formats. Such
limitations are a legal, as opposed to technical, barrier to fulfillment of the
fundamental market requirement of software interoperability. The controversy
leading to the European Parliament's overwhelming rejection of the European
Commission's proposed Directive on Computer-Implemented Inventions (software
patents) amply demonstrates that the Foundation is scarcely radical in this
position.
However, that broader issue is not raised by the Foundation's
"no" vote at OASIS on the latest draft WS-Reliable Messaging
("WS-RM") specification; In the WS-RM situation, the Foundation's
"no" vote addresses the irreconcilability of endemic Microsoft public
statements about the openness of the RAND conditions it has adopted with the
actual meaning of the relevant Microsoft IPR Document -- the Microsoft Open
Specification Promise ("MOSP"). MOSP actually grants no rights
whatsoever and forces wary developers to negotiate separate agreements with
Microsoft on Microsoft's terms.
The MOSP has the practical effect of eliminating free and open source
software developers and other independent developers from the market for
applications that implement WS-RM, 29 other WS specifications, as well as still
other specifications. <
http://www.microsoft.com/interop/osp/default.mspx>. Many of the protocol
specifications with which WS-RM incorporates by reference or must remain
interoperable with are included in the MOSP list.
I. DISCUSSION
The MOSP: [i] grants no non-Microsoft
developer rights whatsoever; [ii] omits mention of certain rights required by
applicable OASIS rules to be granted; and [iii] even were such problems
ignored, introduces interoperability break points by applying only to normative
(non-optional) portions of the specification. For those reasons the Foundation
has cast a "no" ballot on the latest draft WS-RM specification.
Microsoft's IPR commitment to the OASIS WS-RM Technical Committee
("TC") was found at . There, the company
states that "Microsoft commits to provide licenses as required by the
OASIS IPR Policy for compliant implementations of the WS-RM
specification."
The Microsoft patent application cited on that page was published on
March 6, 2006 and is reproduced at <
http://appft1.uspto.gov/netacgi/nph-Parser?Sect1=PTO2&Sect2=HITOFF&p=1&u=%2Fnetahtml%2FPTO%2Fsearch-bool.html&r=1&f=G&l=50&co1=AND&d=PG01&s1=20060047947.PGNR.&OS=DN/20060047947RS=DN/20060047947
>. Its claims appear to read on at least major portions if not all of the
WS-RM specification. The Foundation is not aware of any published study of the
Microsoft patent application as to its validity under the more exacting
standards for determining obviousness of an invention established by the U.S.
Supreme Court on April 30, 2007 in the case of KSR International v. Teleflex. .
For that reason the Foundation does not not
address the validity of Microsoft's patent claims, instead assuming for the
sake of this discussion only that they are valid.
A. NO DEVELOPER RIGHTS GRANTED
However, the only applicable IPR document published by Microsoft that
discloses its
The Foundation's work includes development of software tools to enable
interoperability between Microsoft Office and applications supporting the
OASIS/ISO OpenDocument specification, including
applications establishing connectivity via Web Services protocols. Because of
that work, the Foundation has had a front row seat in regard to the cognitive
dissonance between Microsoft's public statements about the MOSP's
meaning and what the MOSP actually says. The MOSP is Microsoft's RAND IPR
document for another specification the Foundation deals with in its daily work,
the Ecma 376 Office Open XML specification.
The fact that the MOSP actually conveys no rights whatsoever was
explained in detail in the EOOXML Objections document published on Groklaw's Grokdoc wiki. <
http://www.grokdoc.net/index.php/EOOXML_objections#Patent_rights_to_implement_the_Ecma_376_specification_have_not_been_granted>.
The Foundation incorporates by reference that legal analysis of the MOSP as applicable
to WS-RM and refers the reader there for a more detailed explanation.
The Foundation believes that Microsoft could easily comply with the
narrow requirements of the applicable OASIS IPR policies providing it is
willing to abandon the rights it presently and quite inappropriately reserves
through its lawyers' machinations in the MOSP. (There is no question that
Microsoft has been aware of the criticism of the MOSP in the Grokdoc EOOXML Objections document but has not since
altered the MOSP accordingly; therefore, there is evidence that the MOSP's *continuing* conflict with well-established OASIS
IPR rules is intentional.)
The WS-RM TC operates under the RF on
"Essential Claims - those claims in any patent or patent
application in any jurisdiction in the world that would necessarily be
infringed by an implementation of those portions of a particular OASIS Committee
Specification or OASIS Standard created within the scope of the TC charter in
effect at the time such specification was developed. A claim is necessarily
infringed hereunder only when it is not possible to avoid infringing it because
there is no non-infringing alternative for implementing the Normative Portions
of that particular OASIS Committee Specification or OASIS Standard. Existence
of a non-infringing alternative shall be judged based on the state of the art
at the time the OASIS Specification is approved."
Notice that the OASIS definition uses the
traditional "patent or patent application ... that would necessarily be
infringed by an implementation" grammatical construct of patent licensing
law rather than the rights-extinguishing MOSP "patents that are necessary
to implement" construct. The OASIS construct is well understood in patent
law; the Microsoft construct might as well read "apples that are necessary
to implement" software. It bestows no rights.
The MOSP grants no rights whatsoever and for that reason violates OASIS
IPR rules.
B. MOSP OMITS RIGHTS REQUIRED TO BE GRANTED
A more minor but still significant problem is that the MOSP does not
encompass the full range of rights required to be granted by OASIS IPR Policy
section 10.1.1 ("make, have made, use, market, import, offer to sell, and
sell, and to otherwise directly or indirectly distribute"). The MOSP only
mentions "making, using, selling, offering for sale, importing or
distributing," omitting "have made," "market," and
"indirectly distribute."
The rights thus excluded are important, encompassing: [i] all works for hire; [ii] all marketing of infringing
software except to the extent that "offering for sale" might be
understood as a synonym for "marketing;" and [iii] and indirect distribution
of such products through, e.g., sub licensing schemes such as those commonly
used by free and open source software developers.
The Foundation believes that the TC seriously errs if it does not insist
that Microsoft grant the omitted rights.
C. INTEROPERABILITY BREAK POINTS
The Foundation is also concerned that the MOSP creates legal barriers to
implementing applications' interoperability by denying patent rights to
implement any non-normative (optional) features and even normative portions of
the specification that are not described in detail and are merely referenced in
the WS-RM specification. Even were the problem ignored of the MOSP not granting
any rights whatsoever, the rights granted would extend to "only the
required portions of the Covered Specification that are described in detail and
not merely referenced in such Specification."
That is a straightforward violation of OASIS IPR policy. Under section
10.2.1, Microsoft may permissibly disclaim rights to implement non-normative
features. ("Such license need not extend to features of a Licensed Product
that are not required to comply with the Normative Portions of such
specification.") But the company may not permissibly extend such an
exclusion to encompass normative features, even if they are not described in
detail and are merely referenced in the specification.
Microsoft's lawyers thereby exclude from any grant of rights in regard
to WS-RM not only optional features, but also any other specifications or
standards that are required to be implemented if they are not described in
detail and are merely referenced in the WS-RM specification.
And the lawyers' client thereby reserves the right to break at will the
interoperability of other developers' implementations by later asserting patent
rights against any WS-RM implementation that is fully conformant.
But the related interoperability
breakpoints do not necessarily end there. Like the OpenDocument
1.0 specification, WS-RM incorporates by reference the definitions of keywords
to indicate requirement levels established by RFC 2119. <
http://www.ietf.org/rfc/rfc2119.txt>. The Foundation urges that at least one
of those definitions be expressly set forth in the WS-RM specification rather
than being merely incorporated by reference:
"MAY This word, or the adjective
'OPTIONAL', mean that an item is truly optional. One vendor may choose to
include the item because a particular marketplace requires it or because the
vendor feels that it enhances the product while another vendor may omit the
same item. An implementation which does not include a particular option MUST be
prepared to *interoperate* with another implementation which does include the
option, though perhaps with reduced functionality. In the same vein an
implementation which does include a particular option MUST be prepared to
*interoperate* with another implementation which does not include the option
(except, of course, for the feature the option provides.)"
(Emphasis added; punctuation errors in original.)
At present, the MOSP limitation of patent rights granted to "only
the required portions of the Covered Specification that are described in detail
and not merely referenced in such Specification" excludes patent rights
that may be required to maintain interoperability with other implementing
applications. This is so because the RFC 2119 definition of "MAY"
that makes interoperability mandatory is not described in detail and is merely
incorporated by reference in the WS-RM specification; therefore, the
interoperability features otherwise required by the definition of "MAY"
are excluded from patent protection by the MOSP.
The Foundation's developers have learned that optional features are
commonly used as interoperability breakpoints by Microsoft's developers,
particularly those that permit standards to be embraced, extended, and extinguished
through proprietary extensions armored by patent claims.
The mirror image of that issue is currently being writ large in the
The Foundation believes that under the circumstances, WS-RM should not
be approved unless the RFC 2119 definition of "MAY" is set forth
explicitly in the text of the WS-RM specification. Much of the Foundation's
interoperability work is aimed at bridging the gap between client side office
suites and Web 2.0; that work will entail reliance on the Web Services
specifications. The Foundation does not wish its work or the work of other FOSS
and independent developers to be held back by a patent thicket inappropriately
surrounding Web Service communications protocols.
D. AUTHORITY TO INSIST ON CHANGES IN MOSP
The TC members have ample authority for insisting that Microsoft revise
its Open Specification Promise to remove its incompatibilities not only with
OASIS IPR rules but also with principles of openness and the goal of
interoperability.
The TC operates under the RF on
"With TC's operating under the RF on RAND
Terms IPR Mode, license terms that are fair, reasonable, and non-discriminatory
beyond those specifically mentioned in Section 10.2.1 may also be included, and
such additional RAND terms are left to the Licensees and Obligated Parties
involved."
II. CONCLUSION
The Foundation believes that the Microsoft Open Specification Promise
should be recognized for what it is, only one of many
Microsoft attempts to thwart competition from independent and free and open
source software developers by manipulation of communications protocols and file
format standards, enforced by an IPR thicket. In this instance, Microsoft
violated the minimum requirements of the OASIS IPR rules in order to do so.
For the reasons described in this document, the Foundation has objected
to Microsoft's legal tactics by casting its ballot against approval of the
latest WS-RM draft specification. The Foundation stands ready to withdraw its
ballot should the issues addressed above be resolved to its satisfaction.
Footnotes
"Microsoft has a published patent application under United States
Publication No. 20060047947 that contains one or more **claims which,** if allowed and issued, **may be essential to implement**
the Web Services Reliable Messaging (WS-RM) Specification currently under
development at OASIS. *Microsoft commits to provide licenses as required by the
OASIS IPR Policy for compliant implementations of the WS-RM
specification."*
Submitted by:
Buck Martin "Marbux", Legal Director
of the OpenDocument Foundation Gary Edwards, President of the OpenDocument Foundation Email from Jeff M: http://www.oasis-open.org/apps/org/workgroup/ws-rx/email/archives/200706/msg00008.html hi,
I assume from this somewhat cryptic email, that the TC will soon be taking
a special majority vote on whether to "override" the NO comment
and forge ahead.
Oracle has looked at the no comment in some detail.
From our analysis we find ourselves in agreement that relying upon the
Microsoft OSP is not suitable for complying with the requirements of the
OASIS IPR policy. The OASIS IPR Policy is stronger with respect
to:
specification coverage - the obligation is for
the entire specification,
not just the mandatory parts;
defensive suspension;
re-distribution requirements;
and possibly some other points as well BUT we believe that this is NOT
relevant to this discussion and our ultimate
vote. Under the OASIS IPR policy, which
all members of the TC are legally bound to
by the OASIS membership agreement, once the 60 day participation
requirement is met, TC members are legally obligated to grant
licenses (or a suitable covenant not to sue/non-assert) to implementers
of the approved specification. In this case Microsoft have said
they will do that twice, once by becoming
and maintaining TC membership, and second in their IPR declaration.
We assume that all the TC member companies will do the right
thing when the time comes for implementers to seek licenses for implementation
of the WS-RX TC's specifications. So from Oracle's perspective, the
only issue that could arise is if Microsoft were to state that they
were relying on the OSP as the basis for
compliance. cheers,
jeff Chris F moved to initiate a TC vote to approve the document despite the single no vote, seconded by Bob F. Mary McRae clarified that this would have to be a special TC majority vote issued by OASIS staff. No objection , motion to initiate TC vote to approve wsrm Specs despite single no vote. 6 Next meetingAgreed to meet every 4 weeks, starting July 12. 7 Any other businessIan Jones moved, seconded by Doug D to give special thanks to Mary McRae for her help in progressing the standard. No objection, agreed to thank Mary for help in progressing standard. Meeting adjoined at 4:18 PM EDT. |
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