[odf-discuss] On covenants

[marbux]

On 11/6/06, Alex Hudson <alex at stratagia.co.uk> wrote:
> If it were such an obvious problem, I would have thought that Larry
> Rosen, Andy Updegrove and the other lawyers who've looked at this would
> have picked up on it, and it seems an obviously different interpretation
> from one which you've held previously:
>
>     "In the first step, Microsoft makes promises only regarding its
>     "patent claims necessary to conform" to its file format
>     specification. I assume that somewhat bewildering phrase means that
>     Microsoft is making no promises regarding patent claims not
>     necessarily infringed by a "conforming part" of a software application."

>     -- http://www.groklaw.net/article.php?story=20051129101457378
>
>
> Did you later reprimand yourself for implying the word "infringed" into
> the CNS, or was your change of mind for a different reason?
>
You have omitted the footnote call that was in the text you quoted.
The footnote states:

"The Microsoft covenant not to sue is a grammatical horror that defies
precise understanding. The phrase "patent claims necessary to conform"
to the specification ignores the reality that software is written in
code, not in patent claims. No patent claim is "necessary to conform
to technical specifications." Once that error is recognized, the
sentence dissembles into gobbledygook. I have attempted to work with
the phrase nonetheless."

I did not dwell on the subject because my article's thrust was
suggestions that Microsoft should consider making to the CNS to
conform it to the inconsistent public statements about it being made
by Microsoft officials. See e.g., the introduction:

"In summary, Microsoft should consider taking prompt action to align
its licensing documents with its public statements regarding developer
freedom to use its forthcoming Office Open XML file format
specification. Those documents presently impose unnecessary restraints
on developers' implementations of the new Microsoft Office Open XML
specification."

In fact, I believe a court would impose a meaning such as that you
argue even if Microsoft did not repair the damage in the CNS itself.
But such a decision would be based on Microsoft's public statements
about the CNS and what it means, not on the CNS itself. I therefore
found the issue we are discussing worthy only of a footnote.

I presume that other lawyers who read the CNS made the same assumption
I did and therefore found the problem we are discussing unworthy of
public dissection. Microsoft's public statements were clear enough and
people are entitled to rely on them; worrying about the relevant
incomprehensible language in the CNS itself just isn't a major issue.
But we have been discussing the literal meaning of the CNS, not
Microsoft's accompanying public statements.

But given that Microsoft repeated the same utterly misleading
grammatical horror in its Open Specification Promise, I suppose that
fact should be noted somewhere in the public record. See
<http://www.microsoft.com/interop/osp/default.mspx>. I may have time
to work on such an article someday that addresses that and other
defects in the OSP. Odd that Microsoft didn't clear that up when it
was alerted to the issue, eh? That might lead one to suspect that
Microsoft's reliance on gobbledygook is intentional. :-)

Best regards,

Marbux