IBM's Sutor, Sun's Phipps give lukewarm reception to Microsoft patent covenants

IBM's Sutor, Sun's Phipps give lukewarm reception to Microsoft patent covenants

Summary: In yesterday's post regarding Microsoft's remarkable step in the right direction (with regards to its issuance of some patent non-assertion covenants), I mentioned that silence on behalf of the normally quick-to-respond-to-such-news Bob Sutor (IBM's open source and standards veep) and Simon Phipps (Sun's chief open source officer) might have been a good sign that there were no major gotchas in those covenants. Well-known open source lawyer Larry Rosen gave Microsoft good marks on the news.

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TOPICS: Open Source
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In yesterday's post regarding Microsoft's remarkable step in the right direction (with regards to its issuance of some patent non-assertion covenants), I mentioned that silence on behalf of the normally quick-to-respond-to-such-news Bob Sutor (IBM's open source and standards veep) and Simon Phipps (Sun's chief open source officer) might have been a good sign that there were no major gotchas in those covenants. Well-known open source lawyer Larry Rosen gave Microsoft good marks on the news. But with that softball of mine hanging out there, both Sutor and Phipps stepped up to the plate to take their swings from their blogs. Said Sutor:

David Berlind has been wondering what we think about this, so here goes: nice start, but there is such a long, long way for them to go after being such active opponents to open collaboration and innovation. The first step was perhaps hard, but they now need to start running fast to catch up to where the industry has been around open operating environments, open middleware, open development environments, and so forth.

So, overall, no gotchas there. That's a pretty good comment given that a company like Microsoft can't go from 0 to 60 overnight.  Plus, I'm not so convinced that it has to catch up.  Yes, keeping certain technologies open will be critical for various reasons. Microsoft wasn't completely unselfish in opening up the Web services specifications that it did. But then again, no big vendor is completely unselfish with their participation in certain open ecosystems. 

At the end of the day, we're talking about public companies that have bills to pay and stockholders to satisfy. Not only that, while IBM has issued similar non-assertion convenants, it too is operating in a hybrid mode where not all of its intellectual property is freely open for the taking by open source developers. In fact, the majority of IBM's IP is not quite so freely available.  So, who is the final arbiter of what should stay open for Microsoft and what should stay closed? Microsoft must decide for itself the same way IBM decides when to non-assert certain parts of its patent portfolio and the same way Sun decides when to open source Java.  All this said, Simon Phipps still sees a few red flags:

....I think this is a welcome step from Microsoft that I've been calling on them to take for quite some time....However, it does contain three issues that I'd like to see addressed...First is the phrase "necessary claims". Whenever I see this phrase my lawyer alarm goes off as it immediately involves a judgement call which is the subjective right of the patent holder....I'd like to see that phrase replaced with language to indicate that no patent claims will be made against source code implementing the standard, with no necessity test involved....the phrase "to the extent it conforms" is [also] worrisome....it leaves open the question of who is the arbiter of conformance....Third (and most complex to explain) is the asymmetry of the patent peace...while Microsoft only grants me "necessary claims" I have to effectively grant them cover on all claims, necessary or not. That asymmetry has to be corrected.

More gory details can be found on Simon's blog.  But overall though, Phipps concludes its a great move by Microsoft and he gives Microsoft's identity chief Kim Cameron high marks for getting Microsoft to change its leopard spots in such significant fashion. Cameron has been a key change agent at Microsoft when it comes to getting Microsoft to open up its technologies.

Topic: Open Source

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