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An Open Letter Re OASIS Patent Policy & a Call to Action
Tuesday, February 22 2005 @ 01:14 PM EST

Here's an open letter from a lot of movers and shakers in the FOSS community, who are asking those who agree with their letter to send an email to open at rosenlaw.com. The issue is OASIS and its new patent policy, found in Article 10, which becomes effective April 15, 2005. I will let the letter speak for itself.

*********************************

A Call to Action in OASIS

The free and open source software community has long demanded that industry standards be freely available to all to implement without patent or other licensing encumbrances. Open standards are essential for free software and open source to thrive.

Now OASIS, a major industry consortium that produces e-business and Web services standards, has adopted a patent policy that threatens to undermine our development and licensing model. This patent policy (available, grouped together with other unrelated legal issues, in http://www.oasis-open.org/who/intellectualproperty.php) permits standards to be based upon so-called "reasonable and non-discriminatory" patent license terms--terms which invariably and unreasonably discriminate against open source and free software to the point of prohibiting them entirely. It would lead to the adoption of standards that cannot be implemented in open source and free software, that cannot be distributed under our licenses. While the policy includes a provision for royalty-free standards, it is a secondary option, which will have little effect if a few OASIS members with patents can ensure it is not used. The OASIS patent policy will encourage large patent holders to negotiate private arrangements among themselves, locking out all free software and open source developers.

This is not a new issue for us. We fought hard for a royalty-free patent policy in W3C and encouraged that standards organization to commit its members to open standards. But some W3C member companies, steadfast opponents of software freedom, moved their efforts to OASIS. Without consulting the free software/open source community, they produced a patent policy designed so that we cannot live with it.

We ask you to stand with us in opposition to the OASIS patent policy. Do not implement OASIS standards that aren't open. Demand that OASIS revise its policies. If you are an OASIS member, do not participate in any working group that allows encumbered standards that cannot be implemented in open source and free software.

Please send email to open at rosenlaw.com to indicate your support. We will forward your comments to the proper authorities at OASIS.

If we stand united in opposition to this unacceptable patent policy, we can persuade OASIS to change it.

/signed/

Lawrence Rosen
Bruce Perens
Richard Stallman
Lawrence Lessig
Eben Moglen
Marten Mickos
John Weathersby
John Terpstra
Tim O'Reilly
Tony Stanco
Don Marti
Michael Tiemann
Andrew Aitken
Karen Copenhaver
Doug Levin
Dan Ravicher
Larry Augustin
Mitchell Kapor
Russell Nelson
Guido van Rossum
Daniel Quinlan
Murugan Pal
Stuart Cohen
Danese Cooper
Eric Raymond
Mark Webbink
Ken Coar
Doc Searls
Brian Behlendorf

  


An Open Letter Re OASIS Patent Policy & a Call to Action | 194 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
corrections here please...
Authored by: seanlynch on Tuesday, February 22 2005 @ 01:55 PM EST
corrections here please...

[ Reply to This | # ]

  • correction here - Authored by: Anonymous on Tuesday, February 22 2005 @ 02:27 PM EST
  • Expensive RX - Authored by: Anonymous on Tuesday, February 22 2005 @ 05:43 PM EST
    • Expensive RX - Authored by: Anonymous on Tuesday, February 22 2005 @ 11:31 PM EST
OT linkage
Authored by: IRJustman on Tuesday, February 22 2005 @ 01:56 PM EST
You know the drill.

--Ian.

[ Reply to This | # ]

My response, sent to rosen
Authored by: Anonymous on Tuesday, February 22 2005 @ 02:13 PM EST
I stand unalterably opposed to any patent policy that prevents, de jure or de
facto, existing or proposed industry standards from being incorporated into and
used freely by free and open source software that is licensed under any
OSI-approved open source license, including most particularly the GPL.

So-called "reasonable and non-discriminatory" licenses, to the extent
that they prevent licensed software and/or standards from being incorporated
into and used freely by FOSS products, are a threat to innovation and software
quality and should be shunned by anyone who is aware of his own best interests.
We refuse to use standards and software that are licensed under such
unreasonably restrictive terms, and we recommend strongly to our colleagues and
clients that they do the same.

--
Robert Bruce Thompson
thompson at ttgnet with a dawt and a com

[ Reply to This | # ]

How did this Patent Policy get approval?
Authored by: MathFox on Tuesday, February 22 2005 @ 02:17 PM EST
When I read that the policy was approved by the OASIS on Januari 20th, I wonder
why no action was taken before the approval. Was there a formal discussion
period or is this a surprise move of the OASIS board?

---
When people start to comment on the form of the message, it is a sign that they
have problems to accept the truth of the message.

[ Reply to This | # ]

Not just an issue for FOSS
Authored by: Anonymous on Tuesday, February 22 2005 @ 02:26 PM EST
"Standards" which are patent encumbered are not just an issue for the FOSS community, and it is a shame this letter does not fully reflect the broader and common interests of all those involved in software development and consumption.

For the government purchaser, mandated to choose products from competitive suppliers, patents are poisonous, for they allow a single vendor to choose who can and cannot supply competitive goods and services. Patents licensed under RAND at best assure that a closed cartel of select wealthy suppliers, rather than just a single supplier, can provide a good or service, which incidently is also considered a violation of the Sherman anti-trust act. Neither assure the open and fair competition that government purchasers are mandated to seek.

RAND just means that if one chooses to charge $10 million for a license, so long as the same terms are offered to everyone, that is okay, for nobody is being "discriminated" against by different terms. Is it reasonable? It depends on how one defines the market. What might be "reasonable" for HP, Microsoft, and IBM, will likely not be for the smaller commercial software producer. It's a big sign that says your business is just not wanted here, regardless of if your a proprietary or FOSS developer.

[ Reply to This | # ]

Fight patents with patents
Authored by: GLJason on Tuesday, February 22 2005 @ 03:10 PM EST
Why doesn't the open source community (with heavy hitters like RedHat and IBM)
get some standards passed that they have the patents for, then license the
patents for use ONLY in GPL licensed software?

[ Reply to This | # ]

For contrast
Authored by: overshoot on Tuesday, February 22 2005 @ 03:19 PM EST
Have a look at the JEDEC Patent Policy. In brief, the Committees are required to avoid known blocking patents in formulating standards. Where, in the Committee's judgment, there is no reasonable way around known blocking patents they may adopt technology covered by a binding RAND letter, but the letter has to be approved by JEDEC legal.

Since JEDEC's subject is hardware there's always money involved in production anyway, so "reasonable" patents aren't a bar to production (unlike software). Even so, it appears to me that JEDEC is stricter about the whole "unencumbered if possible" topic than OASIS, where "reasonable" is arguably zero [1]. Draw your own conclusions.

ObDisclaimer: I am a JEDEC committee chair (yeah, if you want to you could figure out the meatspace identity) and have to remind the membership of the patent policy at each meeting. I may not be objective.

[1] I interpret "reasonable" as not dominating product pricing. A "reasonable" price for a patent on an improved jet engine might be thousands of dollars per engine, where a royalty of a few cents might be "unreasonable" for an RFID chip.

[ Reply to This | # ]

  • Thank you - Authored by: vortex on Tuesday, February 22 2005 @ 04:33 PM EST
What is IBM's position on patents?
Authored by: Anonymous on Tuesday, February 22 2005 @ 03:26 PM EST
I find it odd we havn't been talking more about IBM's use of Linux to further
their business but are in fact the largest patent holder out there.

I want to know what is IBM's position and can the community count on their
support to abolish software patents?

[ Reply to This | # ]

What happens to OpenOffice?
Authored by: Anonymous on Tuesday, February 22 2005 @ 04:00 PM EST
From OpenOffice.org:

"XML file formats allow a user to regain ownership to his/her own data, by
allowing access and manipulation of office documents by arbitrary tools which
support the file format. To make such capability ubiquitous, we believe it is
necessary to standardize file formats. Thus, we have contributed the
OpenOffice.org XML File Format to OASIS. The OASIS Open Office XML Format
Technical Committee will work on creating an open XML file format for office
documents, using the OpenOffice.org format as a base."

Does this mean that OASIS can now add patented material to this format and
exclude OpenOffice entirely?

[ Reply to This | # ]

One for the lawyers, reasonable AND non discriminatory?
Authored by: globularity on Tuesday, February 22 2005 @ 04:45 PM EST
I read reasonable and non discriminatory as unachievable in an economic frame.

Reasonable implies that some monetory compensation is required for a license.

"Non discriminatory" means just that and in an economic frame,
charging for a license discriminates on economic grounds.

In effect OASIS should avoid the use of any encumbered material.

You only have to see the mess encumbered material creates, UNIX for example, to
avoid it like the plague.



My A$0.02

---
Australia: A first world country with second rate rate leaders and 3rd world
ambitions (selling low value low tech items to buy consumer goods).

[ Reply to This | # ]

An Open Letter Re OASIS Patent Policy & a Call to Action
Authored by: Anonymous on Tuesday, February 22 2005 @ 04:49 PM EST
Um, I'm thinking..."So What?"

GPL expressly forbids proprietary software usage.
OASIS appears to be trying to return the favor.

Standards that cannot be implemented in opensource and free software simply
aren't "standard".

Didn't we just have this discussion wrt to tcp and osi? The unix industry is
replete with standards that aren't.

DCE RPC vs ONC RPC...guess which had wider use?
CDE vs <Your Favorite Desktop>...guess which has wider use?

If you want open standards then define them by moving faster to implementation
and widespread use than the standards bodies can move. Not by writing
"demanding" letters and tilting at the corporate windmill.

Looking at the OASIS BoD its simply more of the same OSI, DCE, etc BoD...if they
burden XML or whatever in a way that is unusable then an alternative will be
developed.

If they own the IP in the form of a patent and there is no work around...well,
patents suck. Fight the patent laws.

But as GPL proponents are wont to remind us, there's nothing forcing you to use
GPL software. If you don't like the terms, live without using the GPL code
because it is the IP of the respective owners.

If the open source and "free" software folks can move faster than the
"old dinosaurs companies", there will be prior art that FSF can spend
its warchest on to defeat the more annoying of software patents.

-V

[ Reply to This | # ]

An Open Letter Re OASIS Patent Policy & a Call to Action
Authored by: Anonymous on Tuesday, February 22 2005 @ 05:07 PM EST
So exactly which OASIS standard is encumbered by patents?
Or is this just a complaint against the policy that allows a
standard to possibly be patent-encumbered?

[ Reply to This | # ]

This does NOT affect OpenDocument
Authored by: dwheeler on Tuesday, February 22 2005 @ 06:09 PM EST
It's important to note that this does NOT affect the OpenDocument work, as far as I understand things, and that people can agree with the call yet work on OpenDocument activities.

First, an explanation. OpenDocument is an emerging OASIS standard for office document interchange based on OpenOffice.org; you can learn more about OpenDocument in "The Future Is Open: What OpenDocument Is And Why You Should Care" by Daniel Carrera at: http://www.gro klaw.net/article.php?story=20050130002908154 and you can see the OpenDocument status at their home page: http://www.oasis-open.org/co mmittees/office. It's officially still a draft, but it's actually a very good standard.

The issues of patents in standards has been around a while; articles like http://perens.com/Articles /PatentFarming.html discuss this in more detail.

Rosen and others have sent out a call for action, but look at the words they've chosen: "Do not implement OASIS standards that aren't open. Demand that OASIS revise its policies. If you are an OASIS member, do not participate in any working group that allows encumbered standards that cannot be implemented in open source and free software."

Note that the OpenDocument specification clearly does NOT have this problem. The OpenDocument committee ground rules specifically require a royalty-free license, avoiding this issue entirely. This royalty-free requirement is clearly stated in their IPR statement. Since two of the major implementors are OpenOffice.org and KOffice (both open source software projects), it's clear that the specifications CAN be implemented by OSS projects. Indeed, I suspect OASIS couldn't change this if they wanted to now; this IPR statement was a condition from Sun, and now others have contributed to the work under this agreement. Thus, I believe that OpenDocument is NOT affected by this appeal to OASIS to change its policies. Anyone working on OpenDocument is NOT in conflict with this appeal.

--- David A. Wheeler

[ Reply to This | # ]

Here's the list of those who approved this
Authored by: peshwali on Tuesday, February 22 2005 @ 09:40 PM EST
The Board of Directors approved this policy:

IPR Transition Policy FAQ

IPR committee of Board of Directors:

Chaired by rep from BEA Systems

The only other IPR committee members:

Fujitsu

Sun

Nokia

HP

Microsoft

Oracle

IBM

H ow open to real "open standards" can any of these reps be?

[ Reply to This | # ]

Does anyone have a clue what this means?
Authored by: ossworks on Tuesday, February 22 2005 @ 11:07 PM EST
The open letter does not point to a specific section of the proposed policy, but I think this is it: 
For an OASIS Committee Specification or OASIS Standard
developed by a RAND Mode TC, except where a Licensee has a separate, signed
agreement under which the Essential Claims are licensed to such Licensee on more
favorable terms and conditions than set forth in this section (in which case
such separate signed agreement shall supersede this Limited Patent License),
each Obligated Party in such TC hereby covenants that, upon request and subject
to Section 11, it will grant to any OASIS Party or third party: a nonexclusive,
worldwide, non-sublicensable, perpetual patent license (or an equivalent
non-assertion covenant) under its Essential Claims covered by its Contribution
Obligations or Participation Obligations on fair, reasonable, and
non-discriminatory terms to make, have made, use, market, import, offer to sell,
and sell, and to otherwise directly or indirectly distribute Licensed Products
that implement such specification. Such license need not extend to features of a
Licensed Product that are not required to comply with the Normative Portions of
such specification. For the sake of clarity, the rights set forth above include
the right to directly or indirectly authorize a third party to make unmodified
copies of the Licensee's Licensed Products and to license (optionally under the
third party's license) the Licensee's Licensed Products within the scope of, and
subject to the terms of, the Obligated Party's license.
Can anyone translate this into English for me? My guess is that OASIS members agree to give each other sweethart deals on license fees. Big deal!?! This a parallel universe compared to how FOSS works.
Thanks,
Ossworks

[ Reply to This | # ]

From the OASIS Member page
Authored by: Juggler9 on Wednesday, February 23 2005 @ 01:32 AM EST
"Open, global standards development is made possible by the support of the
OASIS Sponsor organizations listed below."

Doesn't this new policy directly contradict their own website statement? Or is
this just PR and not really meant to be taken seriously?

[ Reply to This | # ]

Another Response
Authored by: Thomas Downing on Wednesday, February 23 2005 @ 06:13 AM EST
Dear Sirs:

I am writing to voice my support for opposition to the new OASIS patent policy.

My company has largely made the sometimes painful transition from an all proprietary model to one that embraces free and open source software. We decided to move in this direction based upon a conviction that it would be of great benefit to our products, services and customers.

We have always been a forward looking company, at the leadingedge of our industry sector. I believe that any endevor led by people of vision will see the vast potential of the F/OSS phenomenon. To the extent that any enterprise embraces policies prejudicial to F/OSS, such an enterprise will live only in the past.

---
Thomas Downing
Principal Member Technical Staff
IPC Information Systems, Inc.

[ Reply to This | # ]

Clarification please - I missing something?
Authored by: Anonymous on Wednesday, February 23 2005 @ 07:08 AM EST
As I read it - people who submit to a standard who have patents relating to it -
are now required to provide a "reasonable and non-discriminatory"
licence to that patent. Previously no such requirement existed.

If the licence terms do not permit operation with the GPL then it clearly is
discriminatory and as such they are in breach of the terms.

Someone explain what I am missing please!

[ Reply to This | # ]

IPR - The bigger problem
Authored by: Anonymous on Wednesday, February 23 2005 @ 09:03 AM EST
There is a much bigger issue degrading development of computer software and
hardware. Namely that Patents are allowed on not just business methods, but
concepts. This translates into companies and coorporations not only thinking
that they can own an idea, but take legal actions based upon those ideas.

In many cases, I would like to point out to the "patents are good"
people that most of what is commonly used on the internet was developed patent
FREE. These same companies who claim IPR should be a cash cow, forgets that the
roots of the computer economy developed without restrictions. Government
agencies, Universities, and independant developers have brought us
"WWW", TCP/IP, FTP, UUCP, Network printing, file sharing,
communications, and so much more.

I know it's futile to mention any of these issues to the greedy populace who are
now in a frenzy trying to gain patents strictly to gain wealth. Imagine what
Microsofts patent on IfNot would do to a software industry which is already
starving for competition? Real would not be allowed to use the same operator
(which exists in many languages already) in their F/OSS version of Basic unless
they paid Microsoft.

What I feel we need, is more demand for patent reform in the US. Contact your
Senate and House representatives and DEMAND that Patent laws are reformed.

[ Reply to This | # ]

An Open Letter Re OASIS Patent Policy & a Call to Action
Authored by: Anonymous on Wednesday, February 23 2005 @ 10:19 AM EST
Please, you guys mostly miss the REAL POINT. You are all talking about a patent license for standards having to be gratis to be usable by GPL Software. This is not all!! The patent license also MUST be SUBLICENSABLE gratis, if it is to be used for free software! (see GPL for details)

[ Reply to This | # ]

For what it's worth...
Authored by: Anonymous on Wednesday, February 23 2005 @ 03:28 PM EST

The chairs of some OASIS TCs have made a suggestion that the OASIS board
consult with the Open Source Initiative over adding an IPR mode compatible with
open source projects. The suggestion has been forwarded to the OASIS board for
consideration. Last fall, a suggestion to add such an IPR mode basically was
disregarded -- but last fall, there was no accompanying public outcry against
the new IPR policy. We'll find out soon if that makes a difference.

[ Reply to This | # ]

[REPOST] Does anyone know what Linus thinks of this?
Authored by: Anonymous on Wednesday, February 23 2005 @ 05:43 PM EST

And I'm so sorry that this question so offended an editor that they chose to delete it earlier. Perhaps this time they could consider that this question is germane to this issue. As a professional software developer, I respect Linus more than the signatories on this list, and as far as I know, Groklaw isn't (yet) a rah-rah cheerleader squad, but a community of individuals who like to hear all sides of an issue before jumping on the bandwagon.

[ Reply to This | # ]

My letter, and a possible standards hijacking scenario
Authored by: ike on Friday, February 25 2005 @ 10:34 AM EST
My letter to rosenlaw:

I believe the inclusion of patents in internet or data-exchange standards under a so-called "RAND" license is wrong. Typical RAND terms are anything but reasonable and non-discriminatory for small firms and individual developers. "Reasonable" ... according to who? "Non-discriminatory" ... from whose viewpoint?

As is becoming painfully clear, software, protocol, and data format patents are an ever-increasing thicket. Who is to say that a patent granted under a RAND license, and used as a key building block in some standard, will not be invalidated in favor of another firm's patent that has _not_ been RAND-licensed?

I also note with alarm the attempted use of novel legal theories to attempt to choke off the exuberant development found in the FOSS (Free and Open Source Software) community. What assurance is there that such stunts will never occur with RAND-licensed patents?

In short, RAND licenses are anything but RAND for vast numbers of programmers and small firms, they do not close the door on hijacking of the patent, and they leave open the spectre of expensive legal battles to defend the ability of people and systems to communicate in the most effective and productive way possible. Don't allow RAND-licensed patents in OASIS standards.

Note the second paragraph: it's a scenario that would play out like this:

  1. MonsterSource decides they want to own (or shut down) a segment of the IT industry.
  2. MonsterSource sets up two companies at a safe legal (read "backroom") distance: CatsPaw Corp. and Submarine Corp. They hold overlapping patents, with Submarine's being the first.
  3. CatsPaw allows their patent to be used in an OASIS standard (under any kind of license, not just RAND). The standard becomes widespread.
  4. When MonsterSource decides its time, Submarine shows up with their patent. Surprise!! Everybody is infringing.

This is just a twist on the submarine patent strategy: use a catspaw patent to get everybody on board the doomed standards ship before you torpedo it.

ike

[ Reply to This | # ]
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