[odf-discuss] On covenants

[marbux]

On 11/6/06, Alex Hudson <alex at stratagia.co.uk> wrote:
>
> I'm going to boil this down to what seems to be the pertinent point.
>
> marbux: you say "patent claims necessary to conform to the
> specifications" roughly means "those patent claims whose text content
> has to be included into any program code which implements OpenXML". If
> that is your interpretation, there is little point arguing the matter,
> because I simply will not read it that way. That interpretation is
> indeed nonsense, and if you hold to it, you're within your rights to say
> that you think the covenant is gibberish.

Thank you. We are in agreement on that point.
>
> As I said, I don't read it that way, and have no problem understanding
> what "necessary patent claims" are - and, given the wide usage of the
> term (e.g., IETF, W3C), I don't think I'm alone.

You are ignoring context again. The CNS does not say "necessary patent
claims;" it says "patent claims necessary to conform to the technical
specifications." Your interpretation is invalidated by your admission
that "[w]hether or not that method
is elucidated in a valid patent is irrelevant, the method is still in
use by the software." You can not (and have not) reconcile(d) that
admission with any argument that "patent claims" are "necessary to
conform to the technical specifications." You have conceded that
patent claims are NOT "necessary to conform to the technical
specification," i.e., that the set defined by the latter phrase is an
empty set, that the phrase conveys no patent rights.

And you are wrong about what the W3C requires (I won't bother with the
IETF because it would be redundant in relevant parts). It does not say
"patent claims necessary to conform to the specification." Here is
what the W3C requires in relevant part:

"'Essential Claims/ shall mean all ***claims*** in any patent or
patent application in any jurisdiction in the world **"that would
necessarily be infringed by implementation" of the Recommendation.***
A claim is necessarily infringed hereunder only when it is not
possible to avoid infringing it because there is no non-infringing
alternative for implementing the normative portions of the
Recommendation. Existence of a non-infringing alternative shall be
judged based on the state of the art at the time the specification
becomes a Recommendation."

<http://www.w3.org/Consortium/Patent-Policy-20040205/#def-essential>,
section 8.1; see also
<http://www.w3.org/Consortium/Patent-Policy-20040205/#def-RF>, section
5.2 (incorporating definition of "essential claims" into licensing
requirements).

Now you need to ask yourself whether you can find language in the
Microsoft CNS that is the equivalent of the phrase highlighted above.
It is not there. You are, as I said in my last post, implying that the
Microsoft CNS has the same meaning as how these things are normally
done, i.e., that you are mentally substituting the W3C's "claims ...
that would necessarily be infringed by implementation of the
[specification]" for Microsoft's "claims necessary to conform to the
technical specification."

You have implied the existence of a phrase like  "that would
necessarily be infringed" -- which would make the CNS sensical with a
bit more rewrite -- into a sentence that does not so much as mention
the subject of infringement. Without such a phrase, you are left with
"patent claims necessary to conform to the technical specification,
which is nonsense without the additional phrase. Without the phrase
you have mentally added, you have already conceded that "patent
claims" are NOT "necessary to conform to the technical specification."
You said, "[w]hether or not that method is elucidated in a valid
patent is irrelevant, the method is still in use by the software." It
necessarily follows logically that there is no such thing as a "patent
claim necessary to conform to the technical specification," the actual
plain language of the CNS. It is an empty set by your own admission.

And because it is -- as you admit -- an empty set, the CNS grants no
rights. Therefore, to imply the existence of a phrase equivalent to
""claims ... that would necessarily be infringed by implementation of
the [specification]," would grant a right where no right was expressly
granted. That is forbidden by the CNS sentence, "[n]o other rights
except those expressly stated in this covenant shall be deemed
granted, waived or received by implication, or estoppel, or
otherwise."

If you could point me
> to a reference who agrees with your interpretation of those words, I
> would be grateful.

Sure, how about this one: "[w]hether or not that method is elucidated
in a valid patent is irrelevant, the method is still in use by the
software." -- Alex Hudson. That was when you gave up the lynchpin to
your argument.


As I said before:
>
> >>     * 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

No, that was what your logic required and I was only paraphrasing you.
What I am saying is that there is no such thing as "patent claims
necessary to conform to the specification." You have already conceded
that is true when you said, "[w]hether or not that method is
elucidated in a valid patent is irrelevant, the method is still in use
by the software." If the patents are "irrelevant," there can be no
"patent claims necessary to conform to the specification."

> >>       "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.
>
> Sorry, but no. I have pointed out that the two interpretations are
> distinct, but that "acknowledgment" that yours is nonsense doesn't
> logically lead to "marbux is right". I grant you that your
> interpretation is gibberish; I don't acknowledge that your
> interpretation is correct.
>
Oh, but you already did when you admitted that "[w]hether or not that
method is elucidated in a valid patent is irrelevant, the method is
still in use by the software." If one can "conform to the
specification" without a patent claim, then no rights are granted by
"patent claims necessary to conform to the specification." It's an
empty set.

You are going to have to come up with a way to have that set occupied
by something other than a nullity before the sentence bestows any
right. You can't do that because of the sentence, "[n]o other rights
except those expressly stated in this covenant shall be deemed
granted, waived or received by implication, or estoppel, or
otherwise." The set of "rights granted" is empty. Therefore to imply
words that would grant a right runs afoul of the prohibition. Your
argument collapsed when you conceded that "[w]hether or not that
method is elucidated in a valid patent is irrelevant, the method is
still in use by the software."

> >> 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."
>
> You think that a Java interpreter is somehow a piece of software which
> "puts into practical effect" the OpenDocument specification? The
> application I described might _contain_ an implementation of the
> OpenDocument specification, but it certainly is not _the_ implementation.
>
> I don't think Sun has opened the doors for everyone to use the entirety
> of their patent portfolio, which is what you're effectively suggesting.
>
Not quite, the patent claims have to relate to an implementation of
OpenDocument. I am not familiar with Sun's patent portfolio, but I
presume they have many patents that have nothing to do with
implementations of OpenDocument whatsoever.

But I have already provided you with my interpretation and references
for the definitions I used. The ball is in your court to provide your
own references and explain why you think I am wrong. You can not get
up in court and just say that you disagree, not if you hope to win an
argument. You have to provide a stronger argument in rebuttal, with
citations. I will not attempt to anticipate every argument you might
make and explain why each is wrong. It is your turn to argue.

Alex, the big problem you are having is that you are trying to conform
the respective covenants not to sue to what you want or expect them to
say. That is the wrong process for contractual  analysis. You must
first determine what they do say, what alternative meanings might be
present, assemble the clues as to which alternative meanings (assuming
they exist) is the right one, and only at the end of the process may
you consider whether your conclusion would lead to an absurd result.

While engaged in that analysis, you must accept any language that is
unambiguous and respect the limitations imposed by the parties. You
must also respect the canons of contractual interpretation. Your only
degree of freedom comes where there is ambiguity or a superimposing
legal duty, e.g., some contractual provisions will be invalidated as a
matter of public policy, such as (in most states) an attempt to
disclaim the implied warranty of fitness for the intended purpose or
to disclaim a party's liability for its own negligence.

You have been approaching the process backwards, trying to find a way
to stuff words and meanings into the CNS that are not there to achieve
what you believe they should say.  Your approach is analogous to
trying to edit a source code file that does not contain the code you
believe it should. But the file is read-only and you don't have the
necessary permissions to set it to read-write. So you attempt to argue
with a co-worker that this subroutine that calls a spellchecker
another program is actually a subroutine that calls a file comparator.
The co-worker can read source code too and can check's what program is
at that URI address specified by the relevant variable. It's not an
argument you can win because you are wrong and don't have the
necessary permissions to edit the code.

It's actually a bit different from that scenario. You do not (and
there is no reason you should) have the necessary vocabulary,
grammatical and issue-spotting skills, and ingrained sense of the
applicable law. Had you chosen to pursue a career in law, you would
undoubtedly have the necessary mental equipment; you are a bright guy.

It is all too easy to fall into the trap of attempting to adapt the
evidence to favorable law, rather than first determining what the
facts are and then determining which law applies to the facts to
determine the logical result. Truth be told, some unscrupulous lawyers
and judges do it at the drop of a hat. That leads to what lawyers call
the "back-handed compliment" from a judge, a decision that ignores the
facts and applicable law and distorts the facts to achieve the desired
result.

I am not suggesting for a moment that you are unscrupulous. But
programming is fundamentally different from law in some respects. In
programming, you decide what result you want and then write the code
to achieve it. Law is supposed to be something more like the reverse.
You determine what the facts are and then apply the correct law to get
the correct result.

In our situation, the facts are the words in the CNS. We can't distort
them to get the result we want. We have to accept what they say, then
look for the rules that most closely apply to them. That's an
over-simplified and more than somewhat idealized vision of the legal
process, but it does describe the process we are supposed to use. We
are at least technically liable to discipline if we offer the court
anything but complete candor. (But the SCO experience certainly
teaches that discipline is not universally applied.)

If you want to learn how to do legal analysis, I'd be happy to offer
you a few pointers and point out your errors, at least to the extent I
have time. But you need to concern yourself with methodology. You're
doing it backwards and it shows.

Best regards,

Marbux