Bob Sutor (IBM, vice-president of standards and open source) recently posted a great discussion on defining an open standard. This is important because we are still as an industry struggling to articulate the business relationship between standards and open source. We also continue to try to articulate the business rationale that accounts for patents in the context of open source or standards. One doesn't have to agree or disagree with software patents, but one does need to deal with the reality of their existence.
After laying out a set of criteria, and some discussion of the problems in definitions in this space, Bob offers the following perfect observation:
If you have read this and conclude "ha, we can't really get an open standard so we'll muddle through and do what we want", then you have misunderstood what I am talking about. Since most standards fall between closed and this "purely open" characterization, you need to decide what is important to you. For example, a government may decide that it really cares about Maintenance, Accession, and Implementation and will try to use standards that maximize those characteristics while being willing to concede a bit on Development and Modification by Others.
There isn't one "right" definition here, and the context is different for different developers and consumers of standards at different times. And yes, you might imagine Bob's example there was for the benefit of the Commonwealth of Massachusetts.
Another recent post in this space that provides context based on the economics of participation is Andy Updegrove's blog discussion on standards and patent pools. Andy is a standards lawyer (literally) at Gesmer-Updegrove and knows whereof he speaks. Mid-post he delivers a great synopsis on the economic benefits of a patent pool. One item left out of the list would be that the pool companies can also stand united against a lone litigious patent holder in the space. Remember: the point isn't to validate software patents, but rather to deal with their reality.
Some good work has been done by a number of people attempting to define the term "open standard" with respect to the freedom to implement such standards in a royalty free unencumbered way. Unfortunately, such definitions put the standards body in an indefensible position. The open source definition applied by a community to its project rested within the control of that community. The same can not be said for the open standards definitions that exist, in so far as an outsider to the group attempting to develop an open standard can arrive on the scene with a patent and put the definition of "open" at risk for that standards project.
I've offered views on patents and standards before in the context of the OASIS IPR policy and around patents as no more than tickets to a negotiation. The decision of the Commonwealth of Massachusetts to move to the Open Document Format, however, will bring this all back up for discussion.
Microsoft is in a bind at this point. They appear to have thought that by publishing the proprietary specifications for their Office formats, accompanied by a royalty free license for any essential patents, they would have a reasonable debating point that they were as "open" as any standard. The fact that no one else has claimed to be implementing them doesn't help their case that they're trying to encourage multiple implementations, but then that probably wasn't their desire. (And what about a license for other non-essential patents that might be infringed? Are they to be royalty free as well, or is that the troll beneath the bridge to be brought out with the excuse that "it's our property".)
This is not the first time Microsoft has been hit on royalty free patent licenses. In the context of the SenderID debate through the Summer 2004, Microsoft went out of its way to do the right thing. They announced they had applied for patents that might read on the IETF SenderID anti-spam standard (which wasn't required of them), offered a royalty free license and published its text for all to see (which was pretty upfront considering they didn't have the patents awarded at the time), BUT the patent license wasn't sublicensable so certain free and open source implementations would be prevented if they were licensed under the GPL.
They appear to have a legitimate legal concern that if software implementing the standard was licensed under the GPL, and subsequently someone used that software source code for a project unrelated to the standard and still licensed under the GPL (through the GPL's attachment), then the scope of the patent could creep and they might lose their ability to license the patent in other contexts under different (presumably royalty bearing) terms.
My question for the patent lawyers "in the room": if there was a way to structure the royalty-free patent license to be strictly for implementing a particular standard (or group of standards), and allow it to be sublicensed in that context (so the GPL could be used), then doesn't the GPL become the guard on the patent? The GPL requires a user to have all the rights to distribute the software. The only patent rights granted in the sublicensable royalty-free license are to implement the standard. Anyone trying to use that software for other purposes and distribute it would be prevented by the GPL from so doing. Indeed, Microsoft could ask the Free Software Foundation for help enforcing the license. Just a thought. I'm clearly not a lawyer, so I would defer to legal minds on this one.
The subtleties here, however, are not to be tossed aside. The curtain has just raised on the document formats play. While Microsoft players are still fumbling their lines in the early scenes, it's unclear the first act is over, and the rest is still being written.