One of the interesting pieces of FUD floating around out there about Open XML is that there are IP issues with it and that is why countries should reconsider yes votes etc. etc. This is a factually wrong line of logic, and one that has been perpetuated throughout the process because most people a) don’t have a law degree and b) don’t want to take the time to think about – so it is easier to assume the worst.
The following text comes from a piece that was pulled together to help people understand these issues. It is too long of a doc to put up in its entirety, so I’m just going to pull a few sections.
Microsoft has made legal commitments to Ecma International, to ISO/IEC, and to all interested users and vendors that anyone can use and implement Open XML without IPR burdens. Microsoft believes that it is in everyone’s interest for this open file format to be available freely and easily for document exchange and preservation. When Microsoft submitted and turned over control of Open XML to the international standardization process, Microsoft also provided multiple options to ensure that its essential patents can be used by anyone, including OSS developers. These IPR commitments go beyond the requirements for ISO/IEC adoption of a standard, and ISO/IEC and Ecma have stated specifically that there are no IPR issues with Open XML.
Any Required Microsoft Patent Rights Are Available On A Royalty-Free, Perpetual Basis To All Implementers, And Both ISO/IEC And Ecma Have Publicly Declared that No IPR Issues Exist.
Microsoft made a patent declaration to Ecma and agreed to make any of its patents covering Open XML available consistent with Ecma’s “Code of Conduct for Patent Matters.” (See http://www.ecma-international.org/news/TC45_current_work/Ecma%20responses.pdf (Sec. 2.2) and http://www.ecma-international.org/memento/codeofconduct.htm)
Microsoft also submitted to ISO/IEC a “Patent Statement and Licensing Declaration Form.” The ISO/IEC form provides three checkboxes: (a) willing to license necessary patent claims on RAND-Z (royalty-free) terms, (b) willing to license necessary claims on RAND (royalty-bearing) terms, and (c) unwilling to license necessary claims under (a) or (b). (See this link) Microsoft checked the first box. That means that if someone asks for a RAND-Z license to implement Open XML, we must provide such a license.
Microsoft also attached to its ISO/IEC patent declaration a commitment that implementers of Open XML would have the benefit of our “Open Specification Promise” (OSP — available in Appendix A and at http://www.microsoft.com/interop/osp/default.mspx) and our “Covenant Not to Sue” (CNS — available in Appendix B and at http://office.microsoft.com/en-us/products/HA102134631033.aspx) as an alternative, if they prefer.
Microsoft thus has gone much further than what Ecma and ISO/IEC require. Both require that a company offer to license its necessary patent claims on RAND terms (which could include a royalty). Microsoft has instead offered all implementers their choice between (a) a negotiated RAND-Z license, (b) the OSP, or (c) the CNS, all three of which provide for royalty-free use of Microsoft’s necessary patent claims.
Indeed, Ecma and ISO/IEC have publicly stated that there are no IPR concerns with Open XML. In a document explaining the upcoming Ballot Resolution Meeting (BRM), ISO/IEC noted that IPR issues will not be discussed, because, “IPR decisions have previously been delegated by all the ISO/IEC and IEC members (NBs) to the CEOs of IEC and ISO/IEC, and they in turn have examined them and found no outstanding problems.” http://www.jtc1sc34.org/repository/0932.htm (emphasis added). Ecma issued a similar statement. http://www.ecma-international.org/news/TC45_current_work/Ecma%20responses.pdf (Sec. 2.2).
To recap, because the BRM and comment process is designed to ensure that the specification is fully and correctly defined, and because ISO/IEC has found no outstanding IP issues, there are no IPR issues associated with Open XML that should raise concerns about implementation, long-term document retention, preservation, or accessibility.
Adoption of Open XML — Including By the Open Source Community — is Growing Exponentially, Underscoring that Developers and Customers are Comfortable that there Are No IPR Issues with Open XML.
Thousands of developers, organizations, governments, and professionals spanning 67 countries and six continents have already expressed public support for Open XML and for its approval by ISO/IEC. (See www.openxmlcommunity.com/community.aspx and http://openxmldeveloper.org/posts.aspx) More than 2,000 members have joined OpenXMLCommunity.org, and hundreds of independent software vendors are developing solutions using Open XML.
A growing number of implementations of Open XML — including from open source developers — are becoming available, including those released by Apple (Mac OS X Leopard, iWork 08, iPhone), Adobe (InDesign), Novell (SUSE Open Office), Microsoft (Office 2007, Office 2003, Office XP, Office 2000), Mindjet (MindManager), Palm Intergen, OpenText (LiveLink), Dataviz (DocumentsToGo on Palm OS), NeoOffice, and Altova (XMLSpy), as well as those under development by Corel (WordPerfect), Gnome (GNumeric), Xandros, Linspire, Turbolinux, and others. These implementations are now available on many platforms, including Linux, Macintosh, Windows, Java, .NET, and handheld devices (PalmOS, Symbian, Windows Mobile).
Key Aspects Of Microsoft’s OSP
- Any required Microsoft patent rights are freely available to all developers and customers of
Open XML in either open source software or proprietary software.
- By stating that the covenant is “irrevocable,” Microsoft has assured users that there will not be a change in company policy at any point in the future.
- Vendors, distributors, and users of Open XML implementations benefit from the OSP just like implementers do. Consequently, there is no need for implementers to pass the promise on to others in their distribution channel, as it is always available to everyone directly.
- No one needs to sign anything or even reference Microsoft to take advantage of the OSP.
- This form of patent non-assert enables open source software implementations. It is especially convenient for open source software developers as there is no issue as to whether or not the IP is sub-licenseable.
- The OSP applies whether a party has a full or partial implementation. Parties get the same irrevocable promise from Microsoft either way.