Raising the bar on patents and standards

Tree Peony

Great news for OpenDocument fans. The guy from Microsoft couldn't have known this, but we were already working on a move that raises the bar on what it means to create a truly open standard. Yesterday, Sun sent to OASIS a new statement concerning patents on the OpenDocument standard. To decode this statement for you, it says that Sun promises not to enforce any patent in any country against any implementation of the OpenDocument format (ODF). That means that, unless you're intending to sue Sun in connection with ODF, you can use ODF with confidence and ignore the FUD.

To dive deeper on the key features:

  1. It's a blanket promise connected with ODF that's not restricted to particular facets or features - it doesn't just have a list of a few carefully-selected patents and leave you to wonder what's not granted. This is for me a key philosophical point. While I congratulate the gesture behind them, previous attempts at patent protection using the "patent commons" approach glorify patents, forcing anyone who would benefit from the apparent protection to become a patent expert. A blanket statement like this just says "no need to look, you're safe, Sun is on your side".
  2. It's irrevocable. It's a promise you can rely on, regardless of changes in Sun and the industry.
  3. It's global. No games involving smiles in one country and attacks in places that don't hit the news so much.
  4. It's not time-limited - there's no "everything before this point" clause. It extends into new features added to future versions of ODF all the time Sun continues contributing to its development.
  5. It's reciprocal (we won't sue you if you don't sue us). That means that we're still able to take action to protect ourselves and the community we participate in, despite providing rock-solid safety for developers and end-users.
  6. There's no bureaucracy. Some moves in the past have sounded generous but have required some sort of action to register a license or act in some other way that limits redistribution of software that's trying to benefit from the protection.
  7. It's simple and clear. There is no game being played.
  8. There's no "essential claims" language. Most statements like this one include language that says that you only get a "waiver" if you've no choice but to infringe the patent. This statement applies regardless. [Thanks to Orcmid, below, for this one]

While this is hugely important and re-assuring for ODF, it's even more important for open standards, as David Berlind points out. It provides an example of how to use patents in a defensive, open-source-friendly way. It provides a model for patent protection that doesn't involve the glorification of software patents. It balances the needs of the corporation to retain self-defence capability in the dog-eat-dog world of corporate IPR and the needs of open source developers to be freed from fear of legal attack.

It is inexpensive for corporations to make this sort of statement - it is an expression of vision rather than the carefully gamed result of an exhaustive patent search and a technical analysis of its outcomes. In my view, it sets the standard for future standards and I am thrilled we've taken this step. We've not patented this idea; feel free to copy it and set the open source world free of fear of legal action over 'open' standards.


Simon, I have been carrying on about all of this over at Brian Jones's blog and while I disagree with you about the 100% FUD (I think it was a simple misunderstanding on Brian's part that you took as insulting. I could see no malice or mischief in anything he has said about this. I think you should lower the gain on your FUD detector, it seems to go into feedback too easily.) Also, I don't quite understand all of your extrapolations about the new Patent Statement, but I do want to acknowledge and congratulate Sun for a very big deal in that statement: the removal of any "essential claims" condition. Essential/necessary claims are a big problem in these IPR arrangements, and taking that out of the conditions is great, especially for small developers and open-source folk (who still need to understand that the statement has specific and limited application, as do all statements of this kind). I just added this to my analysis on Brian's blog: '1. There is a very big deal in the new Sun IPR Statement around the OASIS Open Document specification. '1.1 Yesterday in a long note I said, "5. It is the same considered opinion of mine that the Microsoft Royalty-Free license for essential/necessary claims (I never remember which term is theirs, and I can't tell them apart anyhow) in the processing (access or creation) of Office XML formats is indistinguishable from the updated declaration that Sun just added to the OASIS IPR statement for OASIS Open Document. ..." '1.2 Well, wait a minute. The new Sun IPR statement (they call it a Patent Statement) has a bigger difference and I stepped over it. The Sun statement is no longer predicated on essential claims (the language used at OASIS). It doesn't matter whether or not there is a workaround to avoid the patent, so long as your software is processing OASIS Open Document format, Sun promises not to press any patent claim it might have, period. That, for open source developers and others is a big deal. '1.3 The reciprocity condition still applies (and only bothers people who have patents of their own). The removal of the essential claims condition is a very big deal. Now, all bets are still off if you happen to use some of Sun's IP in processing something else, but that's not new news for any of these IPR statements. '1.4 So, when I said this was good work, I understated the situation. Nice job, Sun.

Posted by orcmid on October 01, 2005 at 02:53 AM PDT #

Well, there are days when I am definitely blind as well as stupid. I think they are going to take my Evelyn Wood certificate away from me for sure now. As you mentioned in your text, the reciprocity condition is also gone in the new Sun Patent Statement on ODF. Now I really have to do a new version of the table that I posted in June. - Dennis

Posted by orcmid on October 01, 2005 at 09:36 AM PDT #

[Trackback] Sun has made [a new statement](http://www.oasis-open.org/committees/office/ipr.php) regarding its IPR claims in connection with OpenDocument to the OASIS group. It differs from [the old statement](http://www.oasis-open.org/committees/office/ipr.php#sun...

Posted by The Whole is Less than the Sum of the Parts on October 03, 2005 at 02:35 AM PDT #

If Sun drop out of the OASIS group, that means the OASIS group can't release any future revisions to ODF, right? I heard that in that case, the patent protection only applies if Sun themselves participate in the ODF revision.

Posted by John on August 18, 2007 at 07:40 PM PDT #

John: No, that's not correct. In the unlikely event of Sun leaving the OASIS OpenDocument TC[1], Sun's patent covenant guarantees that the patents associated with all contributions to date would be preserved. However, for new and changed features, Sun would no longer be contributing patents to the things it had not participated in[2].

This is both rational and reasonable - if person A adds a feature to ODF, why should unrelated person B's rights be granted? Whoever you "heard" from is spreading FUD. As indeed is anyone who tells you Sun would ever assert patents against a bona fides open source community or project.

[1] Since Sun currently employs the Chair of the group, disengagement is pretty unlikely.
[2] And if there was a completely new spec with the same name in which Sun did not participate, obviously there would be no grant.

Posted by Simon Phipps on August 18, 2007 at 08:58 PM PDT #

Hi Simon!

Thank you for your quick reply :) I'm a very big supporter of ODF, so please don't take my comments the wrong way at all :)

I just want to repeat what you said, and see if I understood it correctly. It's fairly subtle..

Say Sun drops out of OASIS, and then OASIS release a new version of ODF. Say the new features added are minor and don't infringe on anyone's patents at all.
Would people be able to implement that that new ODF format? I.e. does Sun's patent covenant cover that new version?

Posted by John on August 19, 2007 at 12:51 AM PDT #

Sun's patent covenant would cover everything that version inherited unchanged from the last version in which Sun was involved. In effect that's the same as you're saying.

Posted by Simon Phipps on August 19, 2007 at 01:09 AM PDT #

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