[odf-discuss] On covenants

[marbux]

On 11/6/06, Alex Hudson <alex at stratagia.co.uk> wrote:
> marbux wrot:
> >
> > I do not comprehend what this has to do with your argument that the
> > patent  "is of necessity in the code."
>
> The patent claim doesn't tell you _how_ to do that specifically, but any
> specific code for doing that is covered by that patent claim, and there
> is no way of doing it which doesn't infringe that claim.

But "infringement" is irrelevant. It's not in the CNS. You are
implying that it is. But the CNS forbids implications.

I would say
> that patent claim is necessary to conform to the MP3 specification.

OK, try it this way. First, I think we can agree for now that there is
at least a good faith argument that an encoder I wrote might infringe
the MP3 patent claims. (I ain't a programmer, haven't compared the
patent claims with the code, and don't intend to, but I will grant a
potential infringement for sake of argument.)

Now assume that the patent just expired. The patent is now a nullity.
Assume I have not changed a bit in my encoder since the patent
expired. Infringement is now impossible. My encoder conformed to the
specification when my program was infringing and it still conforms to
the specification. Why is the patent claim still "necessary to conform
to the MP3 specification?"

I am trying to help you understand why you are wrong. And you are
wrong. Bear in mind that a patent has existence only in the eyes of
the law. The piece of paper describing the claims is only *evidence*
of a government grant of a legal right. The patent is not the
document. The patent is also not the methods and concepts described in
the claims, and this is a key point where you have erred. The claims
only identify part of the scope of the legal right, the right to
exclude others from using those methods and concepts absent a valid
license from the inventor or his assignee. That legal right
manufactured from the ethers by the government is the patent itself.
It is a time-limited right of ownership of those methods and concepts,
a right very roughly modeled on the law of property ownership. A
patent is a state, *ownership* of a right.

Just as a deed is not the real property described within it, a patent
is not the methods and concepts described therein as you erroneously
believe. The patent is the right of ownership only and the claims only
describe what is owned. Analogizing to programming, the patent right
is a state (owned) and the claims are the data (the description of
what is owned). Restated even more simply, the patent (ownership, or
right to exclude) is an apple; the claims are an orange, and the
methods and concepts described in the claims are a peach. All three
are separate and distinct concepts.

Now let's throw yet another type of fruit into the salad. Infringement
is another separate and distinct concept. Infringement is modeled on
the law of trespass. It is an invasion of someone else's right to
exclude others (ownership). Let's symbolize infringement as a pear. It
ain't an apple (the state of ownership); it ain't an orange (the
claims that describe what is owned); it ain't a peach (what is owned);
it's a pear (infringement -- yet another state in a programming
metaphor).

Your analysis conflates all four concepts, arguing that the apple, the
orange, the peach and the pear are a monolithic whole. Your logic is
that 1 apple + 1 orange + 1 peach + 1 pear = 1 appleorangepeachpear.
According to your logic, if a document promises not to enforce "patent
(the apple) claims (the orange) necessary to conform to the
specification" then one can somehow read that as meaning something
like a "promise not to enforce the patent (the apple) claims (the
orange) that are necessarily infringed (the pear) by an application
conforming to the specification." You argue that this must be true
because the methods and concepts (what is owned, the peach) are part
of the implementing application's code.

Your argument breaks down for several reasons. I will deal with two of
them here. First, the patent (apple) claims (orange) only describe the
methods and concepts (peach). The patent claims are not the methods
and concepts that the patent claims describe. You have conflated the
apple, the orange, and the peach. You may properly only conflate the
patent and its claims and even that only in appropriate contexts. The
methods and concepts (peaches) are what is owned (the apple), not the
methods and concepts' (peaches) description in the claims (the
oranges). You argue in effect that a parcel of real estate is the same
thing as the description of that property in a deed. But it is not the
same thing. The land has trees and a house on it. The deed's property
description does not. Peaches are not oranges.

Second, an application can conform to a specification regardless of
any relevant patents, as you now concede. ("Whether or not that method
is elucidated in a valid patent is irrelevant, the method is still in
use by the software.") That admission should be enough to bring this
discussion to a close. If the method is in use by the software
"[w]hether or not that method is elucidated in a valid patent," then
you can no longer maintain that there are "any ... patent claims
necessary to conform to the technical specifications." It is an empty
set, as I have been telling you.

What you have been battling with is the very human tendency to
translate what you hear into what you expect to hear, to read what you
expect a sentence to say into what it actually says. Unfortunately,
there is another all-too human tendency to say something different
than what you intended to say, to write something different than what
you intended to write. Sometimes the words just don't come out the way
you intended. I do it every day. When I'm writing, I'm a very careful
grammarian. When I'm talking ... Well, let's just say there's a big
difference. :-)

Such factors may explain why the Microsoft CNS is so deeply flawed.
Lawyers do make mistakes. In fact, the lawyers on at least one side
are wrong in every lawsuit. Sometimes lawyers even deliberately write
language that sounds sensical to those not skilled in the craft but is
actually meaningless. I can not tell whether this particular document
resulted from sloppy hastiness or deliberate distortion of the
relevant legal concepts.

(However, I can say with much more confidence that the fundamentally
misleading nature of the Office 2003 XML Reference Schemas patent
license was deliberate. See my detailed dissection at
<http://www.groklaw.net/article.php?story=20050330133833843#A4>.  That
license also was understood by many to convey a broad grant of rights,
but did not. It granted only the right to write a file viewer for
personal use and even that only for viewing government documents.
There is a reason that Massachusetts rejected that license.

The Microsoft CNS we have been discussing also did not pass muster.
Microsoft admits on its website that customers requested it  to put
MOOX under the company's Open Specification Promise.

> > 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?
>
> Yes, of course it is - the patent claim is just a method for achieving
> something. Whether or not that method is elucidated in a valid patent is
> irrelevant, the method is still in use by the software.
>

May I respectfully submit that you can no longer reconcile your claim
that the patent claim is still "of necessity in the code" with your
admission in the second sentence? A patent claim (apple + orange) is
not a programming method (peach). There is no such thing as "any ...
patent claims necessary to conform to the technical specifications."
It is an empty set.

> >     > 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.
>
> This is not going to get us anywhere.
>
> All I can do to explain to you how to understand that sentence is by
> drawing analogy and expounding. If a sentence said "all things yellow
> are allowed", it's like me saying "for example, red things are
> disallowed" and you saying "it doesn't say anything about red things, so
> that interpretation must be incorrect".
>

You confuse who is saying what. It is Microsoft who said you can not
imply rights not expressly granted, not me. The set of rights granted
is an empty set. There is no such thing as "patent claims necessary to
conform to the technical specifications."

> If all you allow me is the words in the CNS, then I can nothing to
> further your understanding of it because you immediately dismiss any
> other form of words, and merely repeating the CNS to you is unlikely to
> spark any kind of eureka moment.

Well, I haven't given up on helping you see the errors in your
analysis. If your interest is fading I'll understand. However, the law
does allow you to give words their common and ordinary meanings. But
Microsoft put in that sentence that in effect says you can't change
the words' meanings. You're not free to change an apple to an orange
to a peach to a pear.

It might help if you go back and look at your characterizations of
what the CNS says and study them. Ask yourself what was the source of
the particular words you used. If you do that with an open mind, you
will realize that their source was not the CNS. Frankly, it was most
likely your experience of how these things usually work and
Microsoft's public statements about what the CNS meant.

It's refreshing that you are interested in the topic. It puts most
people to sleep. Even most lawyers avoid contract and administrative
law because those areas are so heavily weighted toward rules of
grammar, the meanings of words in context, and seemingly arcane canons
of interpretation. It takes kind of a proofreader mentality to get
excited about it.


> > 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.
>
> If this is your interpretation, I disagree with it on two fronts:
>
>     * I believe it is likely that patent rights are required to conform
>       to OpenXML; I don't believe that I am alone in this either.

Now you are arguing with yourself. Earlier you said, "the patent claim
is just a method for achieving something. Whether or not that method
is elucidated in a valid patent is irrelevant, the method is still in
use by the software."

It is
>       also exceptionally difficult to show that no patents apply, since
>       it's an attempt at proof of non-existance.

Well, that's a topic we really haven't ventured into yet and isn't
essential to the analysis. But I have pointed out that Microsoft is
rattling its patent swords and saying that there are in fact patents
that are being infringed by folks other than Novell. In the legal
context, it's an issue on which Microsoft has the prima facie burden
of proof should the issues wind up in court. Microsoft has to identify
the relevant patents in order to assert rights under them. And the
longer they wait to do so, the more likely courts will tell them they
waited too long. In fact, under my analysis of the applicable law
Microsoft has already waited too long. See
<http://www.groklaw.net/comment.php?mode=display&sid=20061102175508403&title=Novell%20Sells%20Out%20-%20Patents%20allow%20selective%20enforcement%20-%20parent%20wrong&type=article&order=&hideanonymous=0&pid=498417#c500261>.

>     * I don't have a problem with "patent claims necessary to conform".
>       You seem to interpret this as saying "software which has the text
>       of the patent claims written into it" - I interpret it as
>       "software containing methods claimed by patents". I argue the
>       former interpretation is unintelligible, not the latter.
>
Precisely. You're starting to get it. Thank you for acknowledging that
it is nonsense. And as explained above, patent claims (oranges) and
the methods and concepts they describe (peaches) are two distinct and
separate concepts. They are on different planes of existence.
Therefore, your interpretation is wrong and mine is right. The CNS is
unintelligible. That's undoubtedly why Microsoft's customers were
unwilling to buy into it.

>
> >     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.
>
> I struggle to see how a Java interpreter could be defined as an "ODF
> implementation". Note that Sun said "implementation", not "application"
> or "software product" or any other phrase which means "the whole thing".

You postulated a "Java interpreter that natively read/wrote
OpenDocument." I gave you a link to the common and ordinary definition
of "implement" and "implementation." The meaning of the root
"implement" is "[t]o put into practical effect; carry out."
<http://www.thefreedictionary.com/implement>. Mr. Webster (3d) teaches
that "implement" has the sense of "accomplish" or "fulfill" and the
meaning "to provide instruments or means of practical expression." In
the same vein, both Webster and the Free Dictionary seem to generally
agree that the noun form of "implement" means a *tool or instrument*
for doing work. Webster separately defines "implementation" somewhat
circuitously as "the act of implementing or the state of being
implemented."

A "Java interpreter that natively read/wrote OpenDocument" sounds a
lot like a "tool or instrument" for doing work" to me. If you wish to
whittle on "implementation," may I respectfully suggest that you need
to analyze the word in the context of its common and ordinary meaning
since it is a term not defined in the Sun CNS? After comprehending
that meaning, you will then be positioned to analyze its meaning in
context.  It's bass ackwards to form a conclusion before you
comprehend the meaning of words and analyze their usage in context.
You are taking the desired result-driven approach, which I suspect is
what led you to the errors regarding other language in the same
sentence. The task is to determine what the sentence actually says,
not what you want it to say.

>
> I do not read Sun's covenant as being a blanket grant to their entire
> patent portfolio for any product which contains some ODF conformance.
> They say "implementation of ODF" - to say that it covers those parts of
> software which are not implementations of ODF is to imply words into the
> grant which aren't there.
>

Nope. It's there in the common and ordinary meaning of "implementation."

Don't get down on yourself because your difficulties in eliminating
bias from your analysis. Law school in the U.S. is a 3-year intensive
drill in spotting issues and learning the techniques of unbiased
analysis. To become even a minimally competent lawyer, you have to
learn to strip all preconceptions from your analysis. Remember, we
have to construct not only our own arguments but also to anticipate
the other side's argument so we are prepared to meet it. Attaining the
ability of that kind of unbiased analysis of a human language is not
an easy task. It takes years to get to minimum competency and the
remainder of a legal career will be spent in honing the skill.

Few people who have not been through law school or some other deep
dive into the zen of human language have even a clue about the
imprecision of their own words. Meanings change with context.  I had
one case that turned on the meaning of "the" in context and a couple
that turned on the meaning of "and." I suspect that this will be
horribly counterintuitive for someone schooled in boolean logic, but
in the English language, in some contexts "and" means "or." If you're
in a law library sometime, look for West's Words & Phrases (roughly 30
volumes) and look up "and." You'll find pages of small type with
citations and one sentence summaries of hundreds of case decisions on
whether "and" means "or" in particular contexts. The fact is that
people often use one when they meant the other. In some contexts, you
get an opportunity to prove that a different meaning was intended. In
other contexts you don't, as in a unilateral contract that closes with
a sentence like, "[n]o other rights except those expressly stated in
this covenant shall be deemed granted, waived or received by
implication, or estoppel, or otherwise."

What I think you need to accept is that you are out of your depth. You
are trying to argue law with a retired lawyer who is not trying to
mislead you, with roughly the expertise equivalent to what I would
possess were I to try to argue programming methods and concepts. What
is wrong in both circumstances is that it would be a one-sided
argument. Just as you would not attempt to mislead a neophyte
programmer, I would not attempt to mislead you about the law. It would
be unconscionable and serve no worthy purpose.

Accepting one's own ignorance is the foundation of all learning. Only
when one sheds the conceit of "wisdom" may one open the mind to Truth.
Please understand that I am trying to help you understand some
concepts that are alien to you, not to argue with you. Your last post
shows real signs of dawning awareness. I encourage you to continue the
conversation.

Best regards,

Marbux