OASIS Protects Open Source Developers From Software Patents

Crane Block

Some of you may remember a fuss that was made a few years ago by some open source people over the copyright and patent policy used by OASIS, the computer protocols standards body1. OASIS seems to have taken it to heart, because it has today announced what looks to me like the perfect basis for technology standards in an open source world.

Their new rules2 include a new "mode" which standards projects can opt into using. In this new mode, all contributors promise that they will not assert any patents they may own related to the standard the project is defining. Contributors make this covenant:

Each Obligated Party in a Non-Assertion Mode TC irrevocably covenants that, subject to Section 10.3.2 and Section 11 of the OASIS IPR Policy, it will not assert any of its Essential Claims covered by its Contribution Obligations or Participation Obligations against any OASIS Party or third party for making, having made, using, marketing, importing, offering to sell, selling, and otherwise distributing Covered Products that implement an OASIS Final Deliverable developed by that TC.

That's deliciously simple, and implements close to what I have previously recommended as the basis for handling patents in open source projects. I've written before how patent non-assert covenants are low cost for the patent holder and low risk for the developer. There is of course a "patent peace" associated with it:

The covenant described in Section 10.3.1 may be suspended or revoked by the Obligated Party with respect to any OASIS Party or third party if that OASIS Party or third party asserts an Essential Claim in a suit first brought against, or attempts in writing to assert an Essential Claim against, a Beneficiary with respect to a Covered Product that implements the same OASIS Final Deliverable.

I think this is a wonderful development for protecting open source developers from patents, and I would like to see it replicated in all standards bodies. The only issue will be whether OASIS TCs choose to adopt this mode; we need to demand it and boycott the TCs that don't.

  1. I thought the fuss made was pretty unfair at the time, since it complained about legacy OASIS approaches to patent licensing just at the time when OASIS had fixed them - the essence of the complaint was that OASIS hadn't just blown away the old approach but had left it there so that older projects weren't harmed.
  2. There's a redline PDF document showing the changes - the new stuff is mainly in section 10, although other areas had to be changed to match as well, I gather.

This does appear to be a significant development in terms of simplifying IP handling. Of course, it is applied TC by TC.

It would be great to see similar policies adopted by other standards orgs. The release of standards and related materials under simple, permissive licenses like BSD also would be good. It is common to use different standards from different organizations in one implementation. Determining how two (or three) licenses fit together (or don't fit) shouldn't take extensive legal review.

Posted by Chuck Allen on June 05, 2009 at 05:41 AM PDT #

> Of course, it is applied TC by TC.

Indeed, and that's the biggest issue. It will be interesting to see which organisations choose to use the new mode. To really make a difference we need market demand. I'd like to see groups like FSF and OSI educate their members to expect the non-assert mode from standards definers.

Posted by Simon Phipps on June 05, 2009 at 05:58 AM PDT #

Yes, it is important to note that the patent mode of a TC is established at the time the TC is established.

It is apparently not permissible for a TC to change its mode after that. To make the change on an existing TC, it is necessary to recharter the TC with a new name and reconstituted membership.

I assume this has to do with the currently-obligated members operating with the existing mode and rechartering is the way to freeze those obligations and create a new mode going forward.

Posted by orcmid on June 05, 2009 at 06:58 AM PDT #

> Yes, it is important to note that the patent mode of a TC is established at the time the TC is established.

This is important to note in terms of the immediate impact.

I do appreciate why they don't want to change the patent mode of an established TC. If you've had a lot of contributions under the prior regimen it is pretty complicating to change how IP is handled.

In just a little editorial note -- that isn't to say that some groups out there haven't made changes to IP policies that diminish or change rights of past contributors or affect those contributors' material interests. So while I'm all for the new option of patent non-assertion, I respect that OASIS doesn't want to empower current members of a TC to make decisions impacting rights/interests of past contributors.

Posted by Chuck Allen on June 05, 2009 at 08:34 AM PDT #

I can hold a patent and sue an open source project and/or a company using the standard.

So OSS nor anyone else is protected from patent ambushes.

OASIS is still corrupted by large multinationals that still supports software patents.

Posted by zoobab on June 07, 2009 at 11:16 PM PDT #

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