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Microsoft's Covenant Re Patents on Office XML Reference Schemas
Wednesday, November 23 2005 @ 01:45 AM EST

Here's Microsoft's Covenant Regarding Patents on its Office 2003 XML Reference Schemas. Andy Updegrove has already posted a comparison with Sun's recent covenant, and as you will see, Microsoft's comes up short in the comparison. (You might want to reread Simon Phipps on the Sun covenant also.) Updegrove:
The upshot is that the Sun covenant is far superior in several important respects to the Microsoft pledge.

This raises the question: Why? Certainly, Microsoft must have expected that a comparative analysis like this would be done almost immediately, so it must have had a strong incentive to match the Sun covenant as closely as possible, and it decided not to. Again: Why?

There are three possibilities. The first is that it has evil entrapment plans afoot, but I really don't think that is likely to be the case, and certainly not in each instance, since it would be rightly pilloried for doing so. The second is that it hasn't gotten far enough through the knothole to bring itself to go as far as Sun did.

The third is that it has made the calculated decision that this is as far as it needs to go to obtain the objective that it is trying to achieve, which is to head off ODF at the pass.

Which is it? My guess is that it's a combination of 2 and 3.

I have my money on 3, if I can only pick one. If I can have as many as I like, I choose 1, 2, *and* 3. Joking. I have to read it more carefully before I reach any firm impressions, but I wanted to post it right away so we can evaluate together. But perhaps this will help you to understand part of what OSDL is striving for with the Patent Commons, namely to avoid covenant proliferation, whereby no one knows what each one says without painstaking analysis. Diane Peters, OSDL's General Counsel, for example, was quoted in eWeek as saying that one goal the Patent Commons is to avoid the trap of commitment proliferation and instead to work toward creating a standard for Open Source covenants or commitments:

"This way, people will be prevented from making one-off commitments. If everyone made their own commitment, the way open-source licenses proliferated, it could make it impossible for people to use them."

Having to analyze each new covenant, like we are now doing with Microsoft's, to make sure there are no gotchas, and even more simply, to just try to understand what each clause means, and then having to cross-check and compare with others' covenants, is really something that in an ideal universe you wouldn't have to do with each new commitment. If there were just a few standard covenants which the lawyers could analyze once and for all, it would make it possible for easier comparisons, with no surprises, and greater certainty. So now you have a real-world example of what OSDL is talking about. Let's face it. It's hard work analyzing a license, even for experienced lawyers like Updegrove.

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

Microsoft Covenant Regarding Office 2003 XML Reference Schemas

Microsoft irrevocably covenants that it will not seek to enforce any of its patent claims necessary to conform to the technical specifications for the Microsoft Office 2003 XML Reference Schemas posted at http://msdn.microsoft.com/office/understanding/xmloffice/default.aspx (the “Specifications”) against those conforming parts of software products. This covenant shall not apply with respect to any person or entity that asserts, threatens or seeks at any time to enforce a patent right or rights against Microsoft or any of its affiliates relating to any conforming implementation of the Specifications.

This statement is not an assurance either (i) that any of Microsoft's issued patent claims cover a conforming implementation of the Specifications or are enforceable, or (ii) that such an implementation would not infringe patents or other intellectual property rights of any third party.

No other rights except those expressly stated in this covenant shall be deemed granted, waived or received by implication, or estoppel, or otherwise. In particular, no rights in the Microsoft Office product, including its features and capabilities, are hereby granted except as expressly set forth in the Specifications.


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