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

[marbux]

On 11/4/06, Alex Hudson <alex at stratagia.co.uk> wrote:
>
> 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.


Oh? Perhaps you might point me to a point in the MOOX specification that
explains how to encode the relevant patent claims? And if the patent claim
is not of necessity in the code, how can it be "necessary to conform to the
technical specifications?"  You've gone so far out on the limb of illogic
that there is nothing left but air to stand on.

You are trying to read a different grammatical construct and a lot more
words into the CNS that are not there, something like Microsoft's notorious
license for CIFS:

"1.6 'Necessary Claims' shall mean those claims of a patent or patent
application, including without limitation, United States Patents Nos.
5,265,261 and 5,437,013, which (a) are owned, controlled or sublicenseable
by Microsoft without payment of a fee to an unaffiliated third party; and
(b) are necessarily infringed by implementing the CIFS communication
protocol as set forth in the Technical Reference, wherein a claim is
necessarily infringed only when there are no technically reasonable
alternatives to such infringement."

<http://swpat.ffii.org/pikta/xrani/cifs/mscifsla020328.txt>.

The language necessary to convey a legal right is not rocket science,
particularly for rights to use patented IP. A lot of contract law is about
finding, cutting, and pasting language that has already been upheld by the
courts and tweaking it only to the extent necessary to apply it to the
unique new circumstance.

But Microsoft did not do that with the CNS. We need not concern ourselves
with the reason. The issue is how one might imply meaning that is not stated
without running afoul of the "no implications" sentence.

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.


Yup. Now tell me how you read the  word "infringes" into the CNS. It isn't
there and would have to be in order for the sentence to make sense.


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.


With the obligatory bow to Larry Lessig, software code is not yet IP law.
You have erroneously conflated "law" to include one of its objects,
algorithms.


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".


Nope. It comes down to reading words like "infringed" into the CNS that are
not there. And that is forbidden by the "no implications" sentence.

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, intending no disrespect, you are out of your depth here and it is
showing.  You are reading the "necessary to conform to the technical
specifications" language out of existence, a phrase that does not appear in
the Sun CNS:

"Microsoft irrevocably covenants that it will not seek to enforce any of its
patent claims **necessary to conform* to the technical specifications . . ."

That phrase is adjectival and modifies the meaning of "patent claims." Sun's
language suffers from no similar defect: "Sun .. covenants that .. it will
not seek
to enforce any of its .. patents against any implementation of the Open
Document Format".

Again, you are trying to imply meaning where there is none. The "no
implications" sentence bars you from changing the meaning of the words that
appear. Rewriting the CNS to omit the adjectival modifying phrase is not an
option.

That modifying phrase alters the meaning of "patent claims" to include only
those claims "necessary to conform" to the specification. No "patent claims"
are necessary to conform to the specification because the specification
contemplates the creation of code, not patent claims. That means that the
promise not to enforce patent claims universe encompasses no patent claims.
It is an empty data structure. In other words, Microsoft reserves the right
to assert any of its patents against anyone who implements the schema.

A patent claim might be "necessarily infringed" by conforming with the
specification. But the CNS does not speak to claims necessarily infringed.
You would not win a lawsuit arguing that it does.

You might, however, win a lawsuit with an argument based on Microsoft's
public statements. But you would still have to climb the mountain of that
"no implications" sentence. A judge might set aside the CNS and rule for you
on grounds of waiver or estoppel based on Microsoft's public statements. But
a judge would never find that the CNS itself conveys rights, at least
without voiding the "no implications" sentence.

May I respectfully suggest that it is precisely because of such issues that
Microsoft is now moving from the CNS to the Open Specification Promise? I do
know that my article has been discussed with Microsoft and has been taken
seriously, just as my previous article on problems with the Office 2003 XML
Reference Schema patent license presaged the creation of the CNS. See <
http://www.groklaw.net/article.php?story=20050330133833843>
("If Microsoft has no current patents or has patents that do not encompass
the entirety of the schemas, either a covenant not to sue or a waiver of
rights would have been far more appropriate than a botched attempt at a
blanket patent license.")

Some day, Microsoft will get it right. They are getting closer. :-)

Best regards,

Marbux
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