Microsoft has given the ‘Open Specification Promise’, promising not to sue 3rd parties that use the Ecma specification for patent infringement. There are several issues outstanding with this:

(a) The Promise only relates to ‘Microsoft Necessary Claims’ which are “those claims of Microsoft-owned or Microsoft-controlled patents that are necessary to implement only required portions of the Covered Specification that are described in detail and not merely referenced in such specification” Firstly the boundaries of what is permitted and what is not are not clear. Secondly, it is not determinable if the license is sufficient. If what Microsoft calls ‘reference’ equals the binary sections that refer back to Windows architecture, the promise does not give significant comfort given the large parts of binary XML sections in the Specification that are however needed to make a 3rd party solution interoperable with Microsoft’s software. Thirdly, the promise does not prevent Microsoft from obstructing third party implementations. Fourthly, there are severe limitations for embedded formats. Microsoft is said to have a wide range of IP in all sorts of proprietary content which would be embedded in an OOXML doc, all of which would not be considered ‘required’ under the promise. Finally it appears that the promise does not relate to copyrights but only to patents and leaves significant scope for legal uncertainty for 3rd party developers

All issues relating to IP, patents and access shall be examined in depth and irrevocable agreement obtained from Microsoft that all required access to information will be provided without monetary consideration, potential treat of legal action, issues relating to copyright, nor shall access to required information be denied or delayed.

 

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Proposed Disposition of DIS 29500 Comment NZ-0054 (Modified: 2008-01-04) DIS29500 fully complies with the Ecma and ISO/IEC/ITU IPR policies. ISO and IEC have received the appropriate IP declarations related to DIS29500 — these are on file in their database and ISO/IEC may be queried about them. All IPR matters should be referred to ITTF, as prescribed in the JTC 1 Directives for the Fast-Track process. National Bodies are respectfully encouraged to review the existing ISO/IEC/ITU Common Patent Policy, as requests to implement changes or extensions to this IPR Policy should happen through normal ISO/IEC processes and not through the DIS29500 BRM or vote. As to copyrights, please see JTC 1 Directives Section 10.2, which assigns DIS copyright to ISO and IEC. ISO and IEC representatives have repeatedly stated that they believe there are no IPR issues that would cause concern with the ISO/IEC/ITU Common Patent Policy or the adoption of DIS 29500, as explained in item 4.1 of the ISO/IEC JTC 1/SC 34 FAQ on DIS 29500 (which is publicly available at http://www.jtc1sc34.org/repository/0932.htm ): 4.1 Will IPR issues be discussed at the BRM? No. IPR issues in this process are the exclusive preserve of the ITTF. IPR decisions have previously been delegated by all the ISO and IEC members (NBs) to the CEOs of IEC and ISO, and they in turn have examined them and found no outstanding problems. NBs seeking reassurance in such matters must pursue them through other avenues than the BRM. Ecma has the following comments: Contributions to Ecma were made under the Ecma Code of Conduct in Patent Matters, which we believe to be in line with ISO/IEC/ITU Common Patent Policy. As a member of Ecma, Microsoft has made information available to Ecma regarding any essential patent claims Microsoft may have in connection with ECMA-376, and this declaration was provided to JTC 1 together with the Fast-Track document. Ecma has been informed by ISO that Microsoft has also submitted to the ISO Central Secretariat a Patent Declaration Form related to licensing of any of its essential patent claims that are necessary to implement DIS 29500. Pursuant to such Patent Declaration Form, Microsoft has provided assurances to ITTF that any such essential claims vis-à-vis DIS 29500 will be available for full or partial implementations under three different approaches (from which an implementer can select). These options include Microsoft’s Open Specification Promise (see http://www.microsoft.com/interop/osp/default.mspx ), Microsoft’s Covenant http://office.microsoft.com/en-us/products/HA102134631033.aspx ) and a royalty-free Reasonable And Non-Discriminatory (RAND-Z) license. The OSP enables both open source and commercial software to implement DIS 29500. See http://www.microsoft.com/interop/osp/default.mspx#EZCAC for statements from the open source community. We note that a growing number of implementations of ECMA-376 are becoming available, including those released by Apple (Mac OS X Leopard, iWork 08, iPhone), Adobe (InDesign), Microsoft (Office 2007, Office 2003, Office XP, Office 2000, Office 2008 Mac OS X), Novell (Suse Open Office) , Google (Search / Preview), Mindjet (MindManager), Intergen, OpenXML/ODF Translator (Open Source project on Sourceforge), Dataviz (DocumentsToGo on Palm OS, MacLinkPlus on Mac OS X Leopard), NeoOffice, Altova (XMLSpy), MarkLogic (XML Content Server), Datawatch (Monarch Pro), QuickOffice (QuickOffice Premier 5.0 on Symbian), Altsoft (XML2PDF Server 2007) and those under development by Corel (WordPerfect), AbiWord, Gnome (GNumeric), Xandros, Linspire, Turbolinux and others. These implementations are now available on many platforms, including Linux, the Macintosh, Windows, and handheld devices (PalmOS, Symbian, Windows Mobile). Due to ISO/IEC’s position on IPR issues as they have explained above, no changes to DIS 29500 are proposed. Similar Comments: AU-0002 , BG-0002 , CH-0004 , CH-0019 , GR-0001 , GR-0015 , IN-0006 , IN-0070 , IR-0057 , KE-0074 , KE-0075 , NZ-0010 , PT-0001 , PT-0003 , PT-0004 , US-0003 , ZA-0008