[odf-discuss] On covenants

[Alex Hudson]

marbux wrote:
>
>     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?

That's a plain red herring argument and you know it. Show me _any_
specification that is patent encumbered and specifically shows you "how
to encode the patent claims". The specification doesn't tell you how to
code *anything*; the specification is for a data format.

Going back to real-world examples: the MP3 specification is for an
encoded data stream. It doesn't tell you how to decode or encode any
given piece of audio, and in fact there are a variety of encoders and
decoders available which work in completely different ways. They all
infringe the MP3 patents, though.

> And if the patent claim is not of necessity in the code

It *is of necessity in the code*. The code infringes the patent.

>
>     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.

Patent claims necessary to conform to the technical specification are
those patents that would necessarily be infringed by any implementation
of the specification. It's the flip side of the same coin.

If you think the wording is problematic, perhaps you can point out an
example of a patent that would not be infringed by any given
implementation of a standard, but yet would be necessary to conform to
the technical specification (since that would be Microsoft's "loophole")?

Setting aside your argument that it is unintelligible (I don't think it
is), I would also say that it's arguable that it is narrower than the
Sun patent grant.

Sun's language is "all patents", Microsoft says "all patents necessary
to conform to the spec". Now, if the Microsoft language does cover all
the patents they have which would be infringed by an implementation of
OpenXML (we disagree on this, I think), is it narrower than Sun's grant?

On first reading, it would seem that it is, but then Sun goes on to say
that their grant only covers OpenDocument implementations. You couldn't
write a Java interpreter that natively read/wrote OpenDocument, and use
that patent grant to protect yourself from Sun's patents on the Java
technology.

Microsoft has similar wording which limits the patent grant to those
parts of the software involved with the standard, which again talks of
conformance to the specification. It's arguable that it's a narrower
definition.

-- 
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