[odf-discuss] On covenants

[marbux]

On 11/5/06, Alex Hudson <alex at stratagia.co.uk> wrote:
>
> marbux wrote:
> >
> > 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".


Exactly. I not only don't know of any but have not thus far been able to
imagine why anyone would wish to do so (or wish anyone else to do so). It is
you has argued that "patent claims are absolutely part of software." Not me.
And if not in the code, how are they "absolutely part of software?" You've
led me into a realm of metaphysics I do not comprehend.


The specification doesn't tell you how to
> code *anything*; the specification is for a data format.


Markup is not code? I guess I've been operating under a delusion for many
decades (along with, e.g., the entire WordPerfect development team; see the
WordPerfect Reveal Codes feature).  In fairness, I will note that I used
"encode" in the typographic sense of "marking up" text rather than in the
sense it typically takes in computer programming. I suspect it is that
differing sense on which you based your comment.

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.


I do not comprehend what this has to do with your argument that the patent
"is of necessity in the code."

> And if the patent claim is not of necessity in the code
>
> It *is of necessity in the code*. The code infringes the patent.


To paraphrase Bill Clinton, I guess that depends on what you mean by "in."
:-) Try it this way; there are nations where software patents are not
recognized and thus there can be no infringement. Is the same MP3 patent
claim still "of necessity in the code" when the MP3 encoder/decoder is
executed on computers in such nations? (Please assume that the software is
identical on a bit-by-bit basis everywhere on the planet.) Can not the same
MP3 encoder/decoder conform with the specification both in nations that
recognize patents and in those that do not?

You are the one claiming there is an apple in that orange. But so far you
have not raised any plausible reason I should believe that.

>
> >     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.
> >


But the Microsoft CNS does not discuss infringement so this argument is
irrelevant.

>
> > 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.


Oh, perhaps you might direct me to the definition in the CNS that says this
is so?  You are implying a definition that is not there and that is
expressly forbidden by the "no implications" sentence.

It's the flip side of the same coin.


Nope. The "no implications" sentence says the coin has no flip side. You can
not imply a definition that is not encompassed by a word's common and
ordinary meaning if it would create a right not otherwise there. Your
definition implies that the following set is not an empty set, "patent
claims necessary to conform to the technical specifications." It is in fact
an empty set (see below);  therefore you are implying a right that was not
expressly granted. You broke the rules. Go directly to Jail; do not pass Go;
do not collect $200.

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


Sorry, but I'll decline. You are postulating the existence of a "patent that
. . . would be necessary to conform to the technical specification." There
is no such beast. It's apples and oranges.

(since that would be Microsoft's "loophole")?


No. Microsoft's relevant "loophole" (there are others) is the fact the
following string is an empty set, "any of its patent claims necessary to
conform to the technical specifications for the Microsoft Office 2003 XML
Reference Schemas." It is grammatically the equivalent of saying "any of its
apples necessary to conform to the technical specifications for an orange."
Both sets are empty. You can only get some other result by implying words
that are not there and that is forbidden by the "no implications" sentence
if to do so would create a right not expressly granted.  As written,
Microsoft has conveyed no rights since no patents are necessary to conform
to a file format specification.

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.


There is no grant of rights in the Microsoft CNS. The set of patents for
which rights are granted is an empty set.  But assuming one could imply the
words you engraft, it is beyond question that the Microsoft CNS grant of
rights is far narrower than that granted by Sun.

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.


Excuse me. How on Earth did you come to that conclusion? Isn't the Java
interpreter still included in the universe of "any implementation" of the
ODF specification? A little light on the subject, please.

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.


No. Sun's CNS says nothing about conformance. <
http://www.oasis-open.org/committees/office/ipr.php>. Moreover, while Sun
grants rights to "any implementation" of ODF, Microsoft further limits its
grant of rights by covenanting not to seek to enforce its apples "necessary
to conform to the technical specifications [for its orange] against those
conforming parts of [someone else's orange]."

That is actually a two-step reduction of rights, even ignoring the apples
and oranges problem. For an implementing independent developer, he must
first  unravel what is meant by the undefined "necessary to conform to the
technical specifications" language (which under your view of the language is
some unidentified portions of the specification covered by unidentified
patents that would necessarily be infringed by implementing the
specification). Our developer must be able to prove that there is no other
way to write his program that does not infringe the same unidentified
patents ("necessary to conform").

Having somehow crossed the barrier of not knowing what patents are involved
so he might be able to tell whether there is a non-infringing way to write
his program, our developer must next figure out what parts of his program
are "conforming," another undefined term. Does that mean only the attributes
and elements of the schema? Does it mean something more? The lack of
definitions introduces ambiguity.

Now comes the third reduction of rights: "No other rights except those
expressly stated in this covenant shall be deemed granted, waived or
received by implication, or estoppel, or otherwise." Guess who gets the
benefit of all ambiguities?

So in sum, we have a covenant that grants no rights and then attempts to
whittle nothing even further, three times. It's either incredibly sloppy
legal draftsmanship or it was deliberate. Either way, it is nothing to build
a software project on.

Sun's CNS, on the other hand, is a blank check for "any implementation" of
the OpenDocument format. Sun covenants it "will not seek to enforce any of
its enforceable U.S. or foreign patents against any implementation of the Open
Document Format for Office Applications (OpenDocument) v1.0
Specification<http://www.oasis-open.org/committees/download.php/12573/OpenDocument-v1.0-os.sxw>,
or of any subsequent version thereof[.]"

That was a shocker for all IP lawyers who read it. The folks in Sun who
lobbied it through were quite proud of it, and deservedly so. No weasel
words, limitations like "conform" or "conforming," nor any  convoluted
grammar; "any implementation" of ODF. That is a word with a common and
understood meaning. See  e.g., <http://www.thefreedictionary.com/implement>.

So you are right but for the wrong reasons. Sun's CNS is a far broader grant
of rights. But that doesn't take much when the Microsoft CNS grants no
rights at all.

Best regards,

Marbux
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