NoOOXML

Recently the Microsoft OSP information page was updated. To those who don't know what the OSP is, a brief introduction: Most standard organisations provide for minimum requirements of patent licensing under RAND terms ("reasonable and non discriminatory"). A better description for RAND license models is "uniform fee". Participants in the standard process have to guarantee that everyone may implement the standard and they need to offer their patents necessary for the standard under a uniform fee. For a standard for ubiquitious software as Office productivity suites this is generally not perceived acceptable. RAND is also discriminatory because the vendor holding the patent does not have to pay a fee to himself what puts him into a competive advantage. A government which would mandate RAND standards essentially agreed to allow a private tax on the standard for the benefit of the vendor which holds patents.

The RAND terminology is confusing because RAND is not well defined and covers a zoo of patent licensing schemes. Of course RAND terms can also be free of charge, this is the case with some RAND licensing models, e.g. FRAND. RAND-Z licenses are "zero fee". However, even royalty-free RAND standards may impose other restrictions. The litmus test whether an international standard is really "royalty-free" without undue restrictions, also known as an essential condition for an "open standard", is whether it enabled implementations under the GNU GPL. If participants in the standard process chose to make it voluntarily an "open standard" ISO does not provide a standard scheme on how to indemnify implementers and users. They don't have a standard RF license. The field of patent indemnification license models is still under development. Just have a look at the collection of licensing and indemnification models at the patent commons website. No one really knows which model is legally safe and sound on a world wide scale as international private law is very much diverse. Certainly trust into the licensor comes into play here.

The main sponsor behind OOXML, the Microsoft Corporation, assured the European Commission that they would chose a RF model for their future Office format.¹ However, their public affairs representatives repeatedly casted doubt whether their chosen patent license model would enable implementations under the GNU GPL and forcefully lobbied domestic and oversees legislators against open standards. The intense struggle has two levels. On one layer the question is RAND or RF as appropriate licensing conditions, on a second layer the attempt was to redefine the terminology of "open standards" to become RAND compatible. A "success" of the lobbying effort was the ITU-T definition of "open standards" drafted by a patent attorney working group which made the limbo for RAND licensing conditions. As an effect all international standards would become "open standards". It comes at no surprise that vendors are sceptical about the honesty of the Microsoft patent schemes and are suspicious about hidden agendas.

Following criticism of the first model, the CNS, Microsoft came up with an Open Specification Promise as their new favourite patent indemnification model. In the FAQ they deliberately leave the question of GPL applicability open and stress that the OSP "does not need to be sublicensable".

The Open Specification Promise is a simple and clear way to assure that the broadest audience of developers and customers working with commercial or open source software can implement the covered specification(s). We leave it to those implementing these technologies to understand the legal environments in which they operate. This includes people operating in a GPL environment. Because the General Public License (GPL) is not universally interpreted the same way by everyone, we can’t give anyone a legal opinion about how our language relates to the GPL or other OSS licenses, but based on feedback from the open source community we believe that a broad audience of developers can implement the specification(s).

Recently a new item was added to the OSP FAQ:

Q: I am a developer/distributor/user of software that is licensed under the GPL, does the Open Specification Promise apply to me?
A: Absolutely, yes. The OSP applies to developers, distributors, and users of Covered Implementations without regard to the development model that created such implementations, or the type of copyright licenses under which they are distributed, or the business model of distributors/implementers. The OSP provides the assurance that Microsoft will not assert its Necessary Claims against anyone who make, use, sell, offer for sale, import, or distribute any Covered Implementation under any type of development or distribution model, including the GPL.

We will see how future updates of the Open Specification Promise (OSP) would reflect this policy. The uncertainty causes many vendors to ask for other bilateral patent indemnification agreements. Some persons who do not trust the OSP asked Microsoft for the text of the FRAND license (mentioned in the ISO documents) as the third available model along CNS and OSP but had no success. Apparently such a third license model is not provided contrary to earlier formal statements and the argument is raised that the OSP would obsolete the third FRAND license.