[odf-discuss] On covenants (was: Partial implementations)

[Alex Hudson]

marbux wrote:
> Microsoft "covenants that it will not seek to enforce any of its
> patent claims /necessary to conform/ to the technical specifications."
> The problem with the clause is that no patent *claims" are necessary
> to conform to a specification. Software is written in code, not in
> patent claims.


Well, we disagree on this basic part of your argument, then - I would
say patent claims are absolutely part of software.

As an example, consider MP3 software. Why is it that distributions don't
ship MP3 encoders? It's because Fraunhofer (et al) have patent claims
which cover the encoding of MP3. It doesn't matter *how* your software
is written - the code itself is irrelevant - if it encodes MP3, then it
necessarily infringes the MP3 patents.

The fact that software is written in code doesn't mean that no other IP
law such as patent law or trade mark law could intersect with it: in
fact, the whole issue with software patents is precisely that patent
claims _do_ cover software.

Sun's equivalent language is "Sun .. covenants that .. it will not seek
to enforce any of its .. patents against any implementation of the Open
Document Format".
<http://www.oasis-open.org/committees/download.php/12573/OpenDocument-v1.0-os.sxw>
I don't see that "patents" versus "patent claims" is a meaningful
difference (since when you bring patent litigation - in the UK at least
- it's the claims that are infringed, not the patent as a whole), so I
guess it comes down to "against any implementation of the format" versus
"necessary to conform to the technical specifications".

Both statements apply only to code which is concerned with the format,
therefore the difference in latitude has to come down to "necessary to
conform" versus "implementation". I could easily grant you that Sun's
has wider latitude, but I don't see that Microsoft's is "unintelligible"
or "garbage" in any way.

-- 
Alex Hudson
IT Director, Stratagia Ltd.
P: 0845 226 17 13     W: http://www.stratagia.co.uk/
F: 0845 226 17 14     E: alex (at) stratagia.co.uk