Document Format Standards and Patents

Alex Brown, Blog
This post is part of an ongoing series. It expands on Item 9 of 'ReformingStandardisation in JTC 1', which proposed Ten Recommendations for Reform,and Item 9 was "Clarify intellectual property policies: InternationalStandards must have clearly stated IP policies, and avoid unacceptablepatent encumbrances."
Historically, patents have been a fraught topic with an uneasy co-existencewith standards. Perhaps (within JTC 1) one of the most notorious recentexamples surrounded the JPEG Standard and, in part prompted by suchproblems there are certainly many people of good will wanting bettermanagement of IP in standards. Judging by some recent development indocument format standardisation, it seems probable that this will be thearea where progress can next be made...
The Myth of Unencumbered Technology: Given the situation we are evidentlyin, it is clear that no technology is safe. The brazen claims ofcorporations, the lack of diligence by the US Patent Office, and thecapriciousness of courts means that any technology, at any time, maysuddenly become patent encumbered. Technical people - being logical andreasonable - often make the mistake of thinking the system is bound bylogic and reason; they assume that because they can see 'obvious' priorart, then it will apply; however as the case of the i4i patent vividlyillustrates, this is simply not so.
While the "broken stack" of patents is beyond repair by any singlestandards body, at the very least the correct application of the rulescan make the situation for users of document format standards moretransparent and certain. In the interests of making progess in thisdirection, it seems a number of points need addressing now. (1) Usersshould be aware that the various covenants and promises being pointed-toby the US vendors need not be relevant to them as regards standards use.Done properly, International Standardization can give a clearer andstronger guarantee of license availability -- without the caveats,interpretable points and exit strategies these vendors' documentsinvariably have. (2) In particular it should be of concern to NBs thatthere is no entry in JTC 1's patent database for OOXML (there is forDIS 29500, its precursor text, a ZRAND promise from Microsoft); thereis no entry whatsoever for ODF... (3) In the case of the i4i patent,one implementer has already commented that implementing CustomXML inits entirety may run the risk of infringement -- and this is probably,after all, why Microsoft patched Word in the field to remove someaspects of its CustomXML support).... (4) When declaring their patentsto JTC 1, patent holders are given an option whether to make a generaldeclaration about the patents that apply to a standard, or to make aparticular declaration about each and every itemized patent whichapplies. I believe NBs should be insisting that patent holder enumerateprecisely the patents they hold which they claim apply.. There isobviously much to do, and I am hoping that at the forthcoming SC 34meetings in Stockholm this work can begin...
http://www.adjb.net/post/Document-Format-Standards-and-Patents.aspxSee also article Part 1: http://www.adjb.net/post/Reforming-Standardisation-in-JTC-1-e28093-Part-1.aspx