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From "Lawrence Rosen" <lro...@rosenlaw.com>
Subject RE: patent licenses on OASIS standards
Date Fri, 25 Feb 2005 16:44:31 GMT
Hi Jeffrey,



My proposed Open Standards Principles are completely consistent with the W3C
patent policy, with the addition of sublicensing. I invite you to compare
them. I also invite you to compare it with the IBM non-assert statement of a
few weeks ago. Except that IBM’s non-assert is only for open source
implementations rather than to “everyone,” it too is consistent. I think
you’ll find that’s true also for most of the licensing commitments for
standards that we already think of as adequate for our needs. So my
definition isn’t very far off, I believe.



I want to separate out the discussion of which specific definition of open
standard is adopted from the notion that we should have some such definition
and we should enforce it. I responded yesterday to Sam Ruby’s email with my
proposed definition, but I wasn’t trying to force it down everyone’s
throat. There’s room for modification or even the adoption of something
different. The problem so far is that there hasn’t been a proper venue for
that discussion within standards organizations because of the enormous
shadow of RAND.



Regards,



/Larry



Lawrence Rosen

Rosenlaw & Einschlag, technology law offices (www.rosenlaw.com)

3001 King Ranch Road, Ukiah, CA 95482

707-485-1242  ●  fax: 707-485-1243

Author of “Open Source Licensing: Software Freedom

               and Intellectual Property Law” (Prentice Hall 2004)



  _____

From: Jeffrey Thompson [mailto:jthom@us.ibm.com]
Sent: Friday, February 25, 2005 6:26 AM
To: lrosen@rosenlaw.com
Cc: legal-discuss@apache.org
Subject: RE: patent licenses on OASIS standards




"Lawrence Rosen" <lrosen@rosenlaw.com> wrote on 02/24/2005 09:26:31 PM:
> Sam Ruby asked:
> > Do we have a formal definition that we can employ for the term "open
> > standards"?
>
> Here's my try at a definition of "open standards" in the form of five Open
> Standards Principles. These were first proposed at the conference of the
> Open Standards Alliance in Phoenix last year. John Terpstra is organizing
> that OSA activity. I welcome your feedback on these principles.
>
>
> Open Standards Principles
>
> 1.   Everyone is free to copy and distribute the official
>    specification for an open standard under an open source
>    license.
>
> 2.   Everyone is free to make or use embodiments of an open
>    standard under unconditional licenses to patent claims
>    necessary to practice that standard.
>
> 3.   Everyone is free to distribute externally, sell, offer
>    for sale, have made or import embodiments of an open
>    standard under patent licenses that may be conditioned
>    only on reciprocal licenses to any of licensees’ patent
>    claims necessary to practice that standard.
>
> 4.   A patent license for an open standard may be terminated
>    as to any licensee who sues the licensor or any other
>    licensee for infringement of patent claims necessary to
>    practice that standard.
>
> 5.   All patent licenses necessary to practice an open standard
>    are worldwide, royalty-free, non-exclusive, perpetual and
>    sublicenseable.
>
>
> Lawrence Rosen
> Rosenlaw & Einschlag, technology law offices (www.rosenlaw.com)
> 3001 King Ranch Road, Ukiah, CA 95482
> 707-485-1242  ●  fax: 707-485-1243
> Author of “Open Source Licensing: Software Freedom
>                and Intellectual Property Law” (Prentice Hall 2004)
>
>

Larry,
      I wouldn't propose that we adopt a definition of open standards that
excludes almost all existing standards, even those which everyone would
agree that, in fact, are free for implementation by open source. How many
existing standards bodies are publishing their standards under open source
licenses?  None of the W3C standards developed under their new RF policy
would seem to satisfy your definition.  Is that intentional?

      There are a number of other "draft" definitions floating around.
Bruce Perens' is interesting and is a good start, but is not the only
definition.  The EU is working on a European Interoperability Framework for
IT and are in the process of trying to define what "open standards" they are
going to recommend that EU governments adopt.  Their definition is
interesting as well:

"The following are the minimal characteristics that a specification and its
attendant documents must have in order to be considered an open standard:

"1.  The standard is adopted and will be maintained by a not-for-profit
organisation, and its ongoing development occurs on the basis of an open
decision-making procedure available to all interested parties (consensus or
majority decision etc.)
"2.  The standard has been published and the standard specification document
is available either freely or at a nominal charge.  It must be permissible
to all to copy, distribute and use it for no fee or at a nominal fee.
"3.  The intellectual property - i.e., patents possibly present - of (parts
of) the standard is made irrevocably available on a royalty-free basis.
"4.  There are no constraints on the re-use of the standard."

There has been a lot of public comment on the EU proposal.

I think that if we are going to work on a definition, it needs to have a
practical effect.  That is, it needs to distinguish between those standards
that open source projects aren't able to implement (potentially because of
royalties on necessary patent claims) and those standards that open source
projects can implement.  Creating a definition that puts the majority of
standards which can clearly be implemented by open source projects on the
"wrong" side of the line doesn't provide anyone meaningful guidance.
Jeff

Staff Counsel, IBM Corporation  (914)766-1757  (tie)8-826  (fax) -8160
(notes) jthom@ibmus  (internet) jthom@us.ibm.com (home) jeff@beff.net
(web) http://www.beff.net/


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