Developers Warned over OOXML Patent Risk

Tendraes brings us a story about legal experts who are warning that Microsoft's "covenant not to sue" over use of the OOXML specification is both ambiguous and untested. Developers wishing to make use of OOXML are unlikely to understand the complex legal language of the Open Specification Promise, and such a document - being neither a release nor a contract - has never been tested in court. From ZDNet Asia: "David Vaile, executive director of the Cyberspace Law and Policy Center at the University of New South Wales, said that Microsoft participants at a recent symposium on the issue found it challenging to explain how an ordinary person 'or even an ordinary lawyer' could easily determine which parts of the specification were covered. 'This lack of certainty would mean a cautious lawyer may be reluctant to advise any third party to rely on the promise without extensive and potentially quite expensive analysis, and even that could be inconclusive,' Vaile said. 'In turn, this could restrict its viability as a usable standard for less well-resourced users, including small developers and many public organizations.'"

Right!

[rolfc (842110)]

The trick is to stay away from Microsoft if you don't want trouble with the law, with licences or with vendor lockin.

Re:Right!

[Znork (31774)]

Without a doubt.

For anyone wanting an explanation of what the 'open specification promise' entails it's quite easy. It's a 'promise' from a corporation that barely complies with legal restraints, and only reluctantly operates within the limits of the law. So for what it's worth they might as well have published a blank page. Except then the non-lawyers would probably also conclude it was useless.

If they wanted to put their money where their mouth was they'd release any patents or other potential relevant IP into the public domain. The fact that that's not what they're doing indicates they have no intention of keeping that promise at all.

Re:Right!

[chunk08 (1229574)]

Yes, but its pointless to argue about that. MS will continue to try to lock people into their "standards", as they tried with HTML. Anything MS releases is just bait to try to get you entangled with something else.

Re:Right!

[coppro (1143801)]

For anyone wanting an explanation of what the 'open specification promise' entails it's quite easy. It's a 'promise' from a corporation that barely complies with legal restraints, and only reluctantly operates within the limits of the law. So for what it's worth they might as well have published a blank page. Except then the non-lawyers would probably also conclude it was useless.

IANAL, but from reading that page, it's clear that any non-required parts of the standard are not covered under this Promise. In other words, if it's a part of an ISO standard, but not specifically required by said standard, they can sue you.. So in other words, they can standardize some extension, except mark it as non-necessary, and sue the heck out of anyone who tries to implement it (or more likely, sue the heck out of someone who has used it for years, such that they are no longer able to provide that feature and the victim's customers only have one place to turn).

Re:Right!

[srmalloy (263556)]

IANAL, either, but you will also note that the document also states:

This promise applies to the identified version of the following specifications. New versions of previously covered specifications will be separately considered for addition to the list.

As I read that, in other words, it says "You can use the specifications listed below in those specific versions. Should we choose to update those specifications and make our OOXML implementation conformant to and dependent upon any new features in those specifications, we reserve the right to not add them to the document and sue your ass off if you try to maintain compliance with OOXML in our full implementation."

Re:Right!

[by Anonymous Coward]

Microsoft has not worked well with anyone. Even though they are a company based in the United States and Bill Gates and Steve Ballmer are U.S. citizens, they have a philosophy and mantra that goes against the principles of democracy, against the very foundations of their country that establish freedom and opportunities for ALL people. They simply want to take advantage of numbers, not grow a society in the freedoms many forefathers have fought for, but one that would continue to give them lots and lots of money. They are selfish, greedy, and self-serving. All they care about is getting people to use their software in order to continue their money stream. They don't care who they exclude, they don't have to care about the quality of their services, because they have a monopoly bought from the US-government through the avenues that allow special interests to take power away from the people and give it to the people who have a lot of money, no matter if that money was earned honestly, or not.

If the way Microsoft did business is very good, right, and moral, then why not teach this to our kids in our schools? Lacking in creativity? getting bad grades? Pay off your teacher. Buy your way through school through manipulation, power, and influence. Isn't that what Microsoft has done in the real world, except they have bought their way through the government enough to dispell public scrutiny? If we let Microsoft do this, are we not doing our kids a disservice because we are not teaching them the way the world is? Maybe the correct way is not democracy, but to make as much money as possible, any way you can, buying your way through life, and trampling over people who have less power than you?

If we would let Bill Gates and Steve Ballmer take over the world, I would have to say, your free speech would be removed, you would have to pay to post your words anywhere on the internet, and your words would of course be censored, and only speech that would be permitted would have to glorify Microsoft's cause as long as Bill and Steve could use it propaganda for their empire. They are no different than a totalitarian dictatorship trying to take over the world.

Your choice. Freedom or Bondage. I want freedom. In everything I do, I do those things that promote those ideals. In regards to computing, I use only Open Source software such as Linux, Open Office, and the rest of the gems produced as GNU/GPLed Free Open Source software which is the stuff Bill Gates and Steve Ballmer do not want anyone to use because it does not suit their purposes, like MS-Windows, Microsoft Office, or Internet Explorer (stuff that would lock anybody in to giving Bill Gates and Steve Ballmer a perpetual revenue stream without them having to earn it from me.)

Re:Right!

[bmartin (1181965)]

MSFT has done an amazing job of locking people in. PC Gaming is predominantly a Direct X-driven industry. Take a look at Halo. People are going to stick w/ Windows instead of OS X or Linux as long as MS dominates the gaming world.

People stick with what they're used to. Wine helps with gaming in OS X and Linux, but it's not going to challenge MSFT's dominance.

Do you want to challenge their dominance? Give a PS3 or a Wii as a gift... or even an Xbox 360. Put an end to Windows gaming. Install a copy of OpenOffice.org instead of that evaluation copy of MS Office that comes with their new computer.

Are you sick of providing tech support to your relatives? Show them what it's like to be virus- and spyware-free with OS X or Linux. Let them run Vista and Ubuntu (or whatever distro you like) side-by-side on the same hardware and let them decide for themselves which one better suits their needs.

I can honestly say that I've had a lot of luck. My parents, my little brother, my fiancee and her father all run Ubuntu now. We use CUPS to print documents from our laptops and it never fails. We mount remote file shares easily and spend countless hours playing Battle for Wesnoth, Runescape, etc.

I don't care if you're a Mac or a Linux person... get people to use something other than Windows... anything else will do.

Re:Right!

[aweraw (557447)]

Do you want to challenge their dominance? Give a PS3 or a Wii as a gift... or even an Xbox 360

The PS3 and Wii make sense, but the Xbox360? It's also a directX based development platform... That's why most games released for the Xbox360 generally turn up on PC soon after (if not a simultaneous release).

Re:Right!

[syousef (465911)]

Give a PS3 or a Wii as a gift... or even an Xbox 360.

People who currently buy a PC for games AND business/education use the business/education to justify it. If you kill off PC gaming, you'll drive up the cost of PCs as you drive demand down. Meanwhile gamers are still locked into a proprietary platform - just one they can't hope to mod or contribute to as much.

Not a good move.

Game Development is much easier

[LingNoi (1066278)]

Microsoft have really lowered the barrier to making games on Windows and Xbox 360. XNA and C# have made it really easy to make games but they're so tied to Microsoft that there is no hope of a port. Most code includes look like this..

using System;
using System.Diagnostics;
using System.Collections.Generic;
using Microsoft.Xna.Framework;
using Microsoft.Xna.Framework.Content;
using Microsoft.Xna.Framework.Graphics;Simple, but Microsoft specific.

Making a cross platform game is a lot harder if you are trying to port something written from Windows because you don't even realise until it happens how non-standard you code can be between operating systems. Perhaps you're using the Windows registry or you're using DirectX. Your only hope really is to score an xbox arcade contract with the publisher Microsoft and if you have written your game in C# and XNA you can give up hope of a port unless you're going to go back and re-write some code in c++.

If you want to make a cross platform game then my advice is to write your code on a different platform (Mac, Linux, etc) and then port it to Windows. You'll find the port much easier this way around as it forces you to write your code to be cross platform and it leaves you open to some great debugging tools such as LatencyTop [latencytop.org] to help you figure out why your game is losing FPS.

That said you can't do all your game programming on Linux because the tools just aren't there. RenderMonkey for shader programming is a good example, but you can easily just do your shader programming on one machine and use the shaders in Linux. Ogre 3D for example has a shader exporter from RenderMonkey.

I have a question

[Mateo_LeFou (859634)]

Is *anyone, *anywhere, just aching to get their hands on the OOXML spec 'cause then they can springboard off of a bunch of the cool innovative things that MS formats can do?

Or is everyone, like me, just kinda hoping it's open enough so that we can sorta-promise clients that the software we develop will sorta-work with their piles of legacy, cruft-infested data. (At least, it'll sorta work until MS changes their document spec again and force-upgrades everyone through Genuine Windows YoureScrewed.)

Cyberlaw Centre, Ron Yu

[by Anonymous Coward]

This is a good read... Ron Yu's background paper on patent approaches in OOXML [cyberlawcentre.org].

It's all about the spec

[topham (32406)]

Look, if it was a good spec then there would be reason to debate it's license, implied or otherwise. There would be reason to discuss Microsofts standing.

It isn't a good spec, so it isn't relevant.

Re:It's all about the spec

[julesh (229690)]

Look, if it was a good spec then there would be reason to debate it's license, implied or otherwise. There would be reason to discuss Microsofts standing.

It isn't a good spec, so it isn't relevant.

The same license also applies to a number of other specs that MS have participated in, including SOAP, WSDL, the VHD image format, SPF, and WMF, all of which are important standards that are relevant to open source implementers. Yes, it's worth discussing.

Renounce ownership of the patents?

[G4from128k (686170)]

IANAL, but it looks like the PTO has some mechanism by which a patent owner can reassign ownership or a patent. If so, Microsoft need only transfer the patent to the public domain or renounce ownership to solve this. Some wishy-washy covenant won't hack it unless it is irrevocable.

Re:

[julesh (229690)]

Some wishy-washy covenant won't hack it unless it is irrevocable.

FTFL:

Microsoft irrevocably promises ...

Huh?

Microsoft patents around OOXML

[pieterh (196118)]

It appears that Microsoft has about 280 patents around OOXML and related technologies. It also has a large number of patents that read on ODF. We're making a list of these and hope to be able to publish them soon.

There are also several patents from third parties that read on OOXML, and in theory ISO should halt the process while these are examined and cleared. It looks like ISO won't do that.

Microsoft has several techniques to keep OOXML a captive standard [digistan.org] controlled by a single vendor. Complexity is one. But patents are the very best technique.

Note also that OOXML's complexity is mostly because it's a dump of a legacy format. Some upcoming MS ISO proposals are very clean technically, but also very heavily patented.

It seems clear that the OSP is worthless for GPL implementations, the biggest threat to Microsoft.

At the same time it's worth noting that the format being voted on by ISO is not the format implemented by Office. There are over 2,300 changes and the two formats are not compatible. The reason for pushing for ISO standardisation is to let MS market their formats as "standard", while in fact implementing non-standard vendor-specific formats. And then, using patent threats against anyone who tries to reverse-engineer those.

It's a nice con trick. Many national bodies have realized what's going on but many are too corrupted [digistan.org] or too ignorant to understand.

Re:

[by Anonymous Coward]

I just read this [bekkelund.net] recently. It shows how bad an idea it is to use Microsoft's "standard" ooxml, since the docx format is deliberately written for vendor lock-in. On the other hand, if you have lots of money, want to only use Microsoft products, believe everyone you care about and/or do business with is in the same position, then go right ahead. Microsoft is great if you want to stop progress.

How can a standard be patented?

[frdmfghtr (603968)]

I'm confused--am I missing something obvious? How can a standard be patented? Isn't the whole point of a standard to specify a format or design requirement for something so that anybody that implements the standard will do it properly? I can understand patenting/copyrighting a particular implementation, but not the standard itself.

Re:

[bkaul (1235970)]

It's not that the standard itself is patented, but that there is patented material included in the proposed standard. The promise is that Microsoft won't sue for patent infringement when developers use the proposed standard, even though the standard itself would infringe some patents held by Microsoft, if implemented without their permission.

It's a promise.

[julesh (229690)]

and such a document - being neither a release nor a contract - has never been tested in court

Bullshit. It's a promise not to take legal action. It says so in the first sentence:

Microsoft irrevocably promises not to assert any Microsoft Necessary Claims against you for ...

Such promises have been tested in court many times. The doctrine that enforces them is called Promissory Estoppel [wikipedia.org].

Promissory estoppel requires:-

        * (i) an unequivocal promise by words or conduct,
        * (ii) evidence that there is a change in position of the promisee as a result of the promise (reliance but not necessarily to their detriment),
        * (iii) inequity if the promisor were to go back on the promise.

Microsoft's words are clearly unequivocal. There is clearly a change in position on the part of a developer who, having read Microsoft's promise, decides to incorporate this format into their software. It would clearly be inequitable then for Microsoft to take action against them.

Untested in court my ass. The first case to use it was 131 years ago.

Re:

[by Anonymous Coward]

Bullshit. It's a promise not to take legal action. It says so in the first sentence:

>> Microsoft irrevocably promises not to assert any Microsoft Necessary Claims against you for ...


And certainly microsoft would never EVER even consider selling some patents to various patent trolls on behind-the-scenes-off-the-record condition that they sue particular companies.

After all. Microsoft promises not to assert themselves. That's it. What some other little guy does after they get a hold of a patent or two

The Real Protection

[logicnazi (169418)]

The real protection you enjoy is that suing you for patent infringement would do too much damage to MS's credibility. MS simply has too much to lose if people start being overly suspicious of relying on the developer information they provide. Ultimately their entire existence is predicated on people being able to take information about specifications they provide (windows APIs) and use them without fear of suit. They simply can't afford to take advantage of some legal loophole to sue you given the damage to their reputation it would cause.

true, but...

[nguy (1207026)]

The "covenant not to sue" is indeed not a particularly sound guarantee. On the other hand, if Microsoft sued over patent infringement in 10 years, I think they'd have a hard time recovering anything: any infringement wouldn't be willful and any it's hard to claim damages over something that they themselves said anybody could use.

Re:

[siyavash (677724)]

No, actually you don't need to eradicate lawyers. That would be treating symptoms and not the cause of it. Edadicate all those stupid laws and make the government smaller... and most of the lawyers will disappear with it.

Re:

[GreyyGuy (91753)]

It is a chicken or the egg situation. Many of the laws were written by lawyers- either the politicians themselves, those that work for them, or the lobbyists that wanted the law.

Re:too many lawyers

[KDR_11k (778916)]

I wouldn't be so sure about that. The predecessors to lawyers caused this mess by arguing "but it doesn't SAY that!" so everything had to be spelled out in an unambiguous way to prevent people from arguing about the rules.

Re:

[cheater512 (783349)]

Ah I see now.

So they turned something which could be interpreted in different ways in to something which has no meaning at all!

Thus solving the ambiguity problem once and for all. :)

Re:too many lawyers

[Zeinfeld (263942)]

So they turned something which could be interpreted in different ways in to something which has no meaning at all!

The objections are irrelevant in this case. If a party writes a contract, covenant, deed or other legal document that could be reasonably misinterpreted the ambiguity goes against the party that wrote it. That is why lawyers try to get the other side to draft contracts, its less risky.

Since we are talking patents here the enforceability of the patent is an issue. Given the nature of the problem I somewhat doubt that if the patents are enforceable against OOXML implementations that they would not cover ODF as well.

Microsoft's general approach to patents has been to 1) assert that company A infringes its patents, 2) sign a cross licensing deal with company A in which each company gets access to the patents held by the other 3) write company A a large check being the balance owed.

Of course it is quite possible that Microsoft might start demanding royalties at some point in the future but at this point they seem to care a lot more about not being sued than actually raising net revenue.

Re:

[Daimanta (1140543)]

Also useless. It's like cutting off a leg when you have a scratch. Those laws did not come into being by accident. They were and are part of a natural process that simply happens. It's pretty much standard.

Incident happens or a trend is happening. People or politicians deem is at as a bad thing. A law is written to fix the issue. Now, this may sound straightforward but the problem is that if you enter in this loop a couple of thousand times, law bloat and fragmentation start to happen. Pretty soon you are d

Re:

[Naughty Bob (1004174)]

Plain English lacks the precision required in the drafting of legal/technical texts.

I agree that stuff should be made as simple as possible though, and bet that's not the case with the MSFT documentation.

All we need now is a plan to decimate the lawyers

Do you mean select one in ten for death? (Ducks)

Re:

[smitty_one_each (243267)]

...decimate...
Do you mean select one in ten for death?

Nah, just move the full-stop one position to the left:
lawyer.s
You people simply waste time obfuscating everything.

Re:too many lawyers

[Meski (774546)]

Why stop at decimation, which would still leave us with 9 in 10 lawyers?

Re:The same has been said of the GPL

[CRCulver (715279)]

The GPL has been tested in court, and in more than one jurisdiction too.

Re:

[ContractualObligatio (850987)]

Exactly.

If you think about it (did you think about it?), you'll realise you're providing a supporting argument to my post.

Re:The same has been said of the GPL

[JaredOfEuropa (526365)]

If "it's not been tested in court" or "non-lawyers may not understand legalese" is all you've got, STFU.

The article says: "Ambiguous and untested". One thing you cannot say for the GPL is that it is ambiguous. While there may be some wriggle room for any lawyer in there, the document states in pretty clear terms what its intent it. Even if you do not understand legalese, you can still read and understand the GPL even if you can not fully appreciate what bits might not hold up in court. For that reason, if a company releases software under the GPL and then contests the consequences in court, any judge worth his salt will at least ask: "but then why did you release under the GPL in the first place?".

Microsoft's document on the other hand seems obfuscated on purpose, so that they can claim OOXML to be open and freely available to speed its adoption as a standard and alleviate fears of lock-in... then go to court and assert a different interpretation whenever their interests are sufficiently challenged. Given where Microsoft's interests lie, that's not a farfetched scenario.

Re:The same has been said of the GPL

[PhysicsPhil (880677)]

One thing you cannot say for the GPL is that it is ambiguous. While there may be some wriggle room for any lawyer in there, the document states in pretty clear terms what its intent it.

Recently I attended a seminar given by the Chief Council of a technology company. He was addressing the legalities of open-source and free software and, as you might expect, the topic of the legality of the GPL came up. During the talk, he commented that the GPL was generally a solid license, but had some unknowns that made it tough for a lawyer.

After the talk I asked him to elaborate a little on this point, specifically asking under what conditions he would actually advise a client to litigate against a GPL claim. He responded that the issue of dynamic linking against GPL software is a significant unknown. While the FSF has a position on the subject, it is not addressed in the GPL, there is little or no case law on the subject and there are differing opinions within the software developer community on the subject.

Re:

[SpaceLifeForm (228190)]

Dynamic linking is fine. He was keeping his future litigation
cash flow in mind. As to precedent, see uClibc and Monsoon.

Monsoon screwed up, and knew they did.

Re:

[ContractualObligatio (850987)]

One thing you cannot say for the GPL is that it is ambiguous .. there may be some wriggle room for any lawyer in there.

Those phrases contradict each other. Do you know what "ambiguous" means?

you can still read and understand the GPL even if you can not fully appreciate what bits might not hold up in court.

Did you even RTFA?! That is the exact argument this guy is using! And I say it is a bullshit argument, using the example of how people tried to use the same bullshit against the GPL.

I have no patience

Re:The same has been said of the GPL

[Cyberax (705495)]

On the contrary, GPL is written in a fairly comprehensible language.

I was able to understand it without any problem, and English is not even my native language.

Re:

[setagllib (753300)]

Just a tip here: "you're" English isn't good enough to use for the purpose of insulting the language skills of others. I'm not a native English speaker either, but some basic professionalism in communication isn't too much to ask.

Re:

[Cyberax (705495)]

The _intent_ of GPL is perfectly clear, it's written in plain English in the preamble. Literal meaning is also crystal clear.

Now, _technical_ _details_ of GPL enforcement, of course, won't be the same in all jurisdictions. For example, GPL technically was not enforceable in Russia a year ago.

But you don't NEED to know all technical details of GPL to understand most of GPL consequences. And you also can read nice FAQs on GPL from the FSF.

No need for complex legal BS

[EmbeddedJanitor (597831)]

You can make a valid legal document that is only a couple of lines long that is easy to understand. No need for legalese. eg. "Anyone can use the OOXML structure for any legal purpose. The End."

The first step to "open" or "sharing" or whatever TF you want to call is is making stuff accessible (ie easy to use and understand) and making clear licensing is part of that.

If every OpenOffice user needs to first get a legal opinion before using OO, then they may as well buy MS Office. Companies that want to be leg

Re:

[ContractualObligatio (850987)]

Bullshit. There would need to be a definition "the OOXML structure", and if you RTFA and the link you'll find that demarcating what is covered by the agreement is precisely one of M$'s concerns.

Your implication that developers should get a legal opinion before working with OOXML is the exact kind of FUD some people tried to use against the GPL.

Re:The same has been said of the GPL

[betterunixthanunix (980855)]

Mainly I think the problem people have is that Microsoft has not made a clear commitment to make this an open standard that anyone may implement in their software. Personally, I would expect no less from Microsoft, and wouldn't be surprised if their intention was to scare third party developers away from OOXML. This is the company that has fought tooth and nail to make sure that nobody ever uses third party software, after all, and now they are in a market that increasingly demands open standards and interoperability. What better way to kill two birds with one stone?

Re:The same has been said of the GPL

[Vexorian (959249)]

Don't believe the hype. Don't believe the FUD. There are real reasons to complain about M$. This isn't one of them.

Hell yes it is. In fact, if there is a reason to complain about MS, optionally-open XML IS! In fact, you have not credibility left for saying the non sense you've just said.

For starters, MS' "promise not to sue" is in no part friendly with the GPL (now that you mention it) And the mere fact that you need MS' to decide not to sue you for implementing their "open" standard is quite ridiculous (really...) What on earth prevents MS to suddenly decide to stop the promise?

Re:

[LaskoVortex (1153471)]

Don't believe the hype. Don't believe the FUD. There are real reasons to complain about M$. This isn't one of them.

Would it be fair to say that a license that has been tested in court is better defined than a license that hasn't? Would it be fair to say that microsoft does not have a history of open specifications? I think both would be fair to say. If microsoft wanted a well defined open license, they should have used one that is already available (GPL, etc.) rather than making up one of their own that i

Re:

[LingNoi (1066278)]

Look what they promise from the Microsoft Open Specification page...

Q: Is this Promise consistent with open source licensing, namely the GPL? And can anyone implement the specification(s) without any concerns about Microsoft patents?

A: 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 unders

Re:

[ContractualObligatio (850987)]

Erm. I didn't even reply to your post. What's the rant for?

Re:Promises are different?

[ozmanjusri (601766)]

Why are Sun covenants GPL friendly and Microsoft's not?

Good question.

The key characteristics and innovative features of the Sun agreement in the OASIS context are: The declaration:
(1) constitutes a blanket promise connected with ODF that's not restricted to particular facets or features;
(2) is irrevocable;
(3) is global valid in all countries and all jurisdictions insofar as Sun is concerned;
(4) is not time-limited with respect to the past, present, or new features added to future versions of ODF [insofar as Sun is obligated under OASIS IPR rules];
(5) is reciprocal, allowing Sun to be able to take action to protect itself and the community, providing rock-solid safety for developers and end-users;
(6) has no bureaucracy or paperwork;
(7) is simple and clear;
(8) makes no reference to essential claims which sometimes govern whether a waiver is applicable: the Sun statement applies regardless.

As opposed to:

The Microsoft Open Specification Promise is ambiguous

Moreover, in the OSP we find additional language limiting rights:

Microsoft Necessary Claims" are those claims of Microsoft-owned or Microsoft-controlled patents that are necessary to implement only the required portions of the Covered Specification that are described in detail and not merely referenced in such Specification.