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From "Lawrence Rosen" <lro...@rosenlaw.com>
Subject RE: IBM and Apache
Date Sat, 16 Jul 2005 03:04:47 GMT
Jeff, you should write television scripts. I don't see this being
appropriate for Law & Order, but perhaps Boston Legal will find humor in it.
:-)
 
W3C resolved the conundrum you described. In W3C everyone recognized that
searching for and identifying patents in a large portfolio merely to license
them royalty-free was an unrewarding task. Instead of that, W3C member
companies promise in advance to license their Essential patents on a
royalty-free basis and are thereby relieved from searching for or
identifying those patents.
 
I gather that's the promise that IBM is willing to make now with respect to
its WS-Security patents, if there actually are any. You are saying that you
don't know of any IBM patents that read upon the standard, but if there were
any, they'd be licensed on certain "royalty-free" terms.
 
Great! Thanks!
 
Are those "royalty-free" terms the ones in your draft license? If so, I
don't think those are "the same terms that apply to all other Internet
standards." In fact, I hope not, because that would cause heartburn to those
who distribute software under open source licenses. Your patent license may
satisfy the OASIS patent policy, but that simply isn't enough nowadays. 
 
If IBM ever has patents that read on the WS-Security standard, will IBM
promise Apache and its customers never to demand execution of licenses for
those patents? Will Apache and its customers be restricted to conforming
applications or can they develop non-conforming implementations? Can Apache
and its customers create and distribute derivative works? Will IBM's patent
defense provision be one that Apache's customers will accept? These are
important questions so that we can prepare for possible future patent
claims.
 
You 
 
Best regards,
 
/Larry
 
P.S. We need to ask these questions also of any other company who, following
obscure and ineffective procedures such as the OASIS one that you described
so amusingly, might have such patents. Microsoft, for example.


  _____  

From: Jeffrey Thompson [mailto:jthom@us.ibm.com] 
Sent: Friday, July 15, 2005 12:33 PM
To: lrosen@rosenlaw.com
Cc: dims@apache.org; 'Roy T. Fielding'; 'Granqvist, Hans';
legal-discuss@apache.org
Subject: RE: IBM and Apache




"Lawrence Rosen" <lrosen@rosenlaw.com> wrote on 07/15/2005 01:25:20 PM:

> I'm now confused. Have we somehow concluded that even though IBM sent us a
> license agreement, there are actually no IBM patents for which we need
> licenses? Why did IBM do that? Or are those patents covered by the broad
> waiver IBM issued a few months ago? Or by the Contributor Agreement that
IBM
> signed (even though IBM is offering a patent license, not software)? When
> did this suddenly turn into a non-issue? /Larry
> 

With a sense of irony that those of us that have been around here for a
while can understand, the process went something like this (all text
completely fictional, but it illustrates the point): 

<IBMer #1>:  WS-Security is a great Spec.  We need to submit it to a
standards body. 
<IBMer #2>:  Which one? 
<IBMer #1>:  OASIS is pretty fast and efficient. 
<IBMer #2>:  Yeah, but we want it to be RF, and OASIS only has a RAND
policy. 
<IBMer #1>:  Right.  Hey, we can make an RF commitment anyway.  Others have
done it.  And, they're working on an RF policy.  That'll be done soon. 
<IBMer #2>:  Great idea.  When we submit the Spec to OASIS, we'll submit a
commitment to license all necessary claims on RF terms.  That'll work. 
. . . 
<OASIS>:            Thanks for the Spec.  Here is your working group. 
<OASIS Member #1>:  We've noticed that you've made an RF commitment for your
patents. 
<IBMer #1>:         Right.  We want everybody to know that we're not going
to try to hold up this Spec and that everyone can implement it. 
<OASIS Member #1>:  But where are the terms? 
<IBMer #1>:         What terms? 
<OASIS Member #1>:  The terms for the patent license. 
<IBMer #1>:         But we don't have any patents. 
<OASIS Member #1>:  Not now.  But you might find one.  And if you do, we
want to know that we'll like the terms. 
<IBMer #1>:         That's silly.  Why not just wait until someone actually
announces that they have a patent.  You'd save a lot of time. 
<OASIS Member #1>:  Because we want to make sure we have all of our ducks
lined up now. 
<IBMer #1>:         But, potentially, every company in the world could have
a patent that reads on WS-Security. 
<OASIS Member #1>:  So. 
<IBMer #1>:         Does that mean that you want to negotiate patent terms
with everybody in case they just might have a patent. 
<OASIS Member #1>:  Maybe.  We still want patent terms from you because you
helped write the Spec. 
<IBMer #1>:         OK, but it'll be a waste of time.  Let me go talk to my
lawyer. 
. . . 
<IBMer #1>:         Here is your patent license. 
<OASIS Member #1>:  Thanks.  We don't like the terms. . . . 
<IBMer #1>:         But we don't have any patents. 
<OASIS Member #1>:  . . . 
. . . 
<Apache>:    Great Spec that WS-Security.  Wish we could implement it. 
<IBMer #3>:  Why can't you implement it. 
<Apache>:    You have necessary patents that you won't license on terms we
like. 
<IBMer #3>:  But the terms are fine -- the same terms that apply to all
other Internet standards. 
<Apache>:    You sure? 
<IBMer #3>:  Yeah. 
<Apache>:    But still, we don't want to be forcing patents on our licensees
unless we know the terms are OK. 
<IBMer #3>:  I understand, but we don't have any patents. 
<Apache>:    Oh.  Right.  So, if you didn't have any patents, why did you
publish a patent license then. 
<IBMer #3>:  [sigh] 

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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