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From Jeffrey Thompson <jt...@us.ibm.com>
Subject RE: patent licenses on OASIS standards
Date Fri, 25 Feb 2005 19:45:37 GMT
"Lawrence Rosen" <lrosen@rosenlaw.com> wrote on 02/25/2005 11:44:31 AM:
> 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 don't see them as consistent, but we'll defer that discussion to another 

> 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.

I agree that Apache certainly needs to understand the effect of its 
choices to implement standards.  Creating a filter to identify those 
standards which Apache projects should steer clear of would go a long way 
toward avoiding nasty surprises later.   That seems like a good project to 
work on.  Whether that should be translated into a broader OSS-wide 
definition of "open standards" is another question.  I don't know how easy 
that would be and once its done I don't know how it would be used?  Who is 
going to go tell SAMBA to stop implementing CIFS, for example? 

In any event, Apache guidelines would address, in my mind, at least three 
basic questions:

1.  Can Apache get the standard?  If we can't get it, we can't implement 

2.  Can Apache publish its implementation under Apache's license?  This is 
the most critical.  Any standards agreement that prevents open source 
implementations shouldn't be embraced by Apache.

3.  Is Apache opening itself or its customers to royalties for necessary 
patents?  This is the hardest to answer.  Your definition of open 
standards spent a lot of time talking about the details of the patent 
licenses, but in the end, the question is whether the open source project 
and its customers qualify for the free license.  Furthermore, the holders 
of all necessary patents might not be known. 

In the end, it boils down to is there a known patent holder that has 
refused to offer an "acceptable" RF license for necessary patent claims. 
Even for standards that are nominally published under RAND commitments, if 
all of the known patent holders have made RF commitments that cover Apache 
and its customers then there is no practical roadblock for Apache's open 
source implementation.

> 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)


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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