Microsoft’s new promise: a welcome development

Today there’s been good news on the IPR front: Microsoft has published what it calls an Open Specification Promise that has the effect of offering a non-assertion covenant on a host of specifications that Microsoft has authored and co-authored. For a legal statement, it’s remarkably clear and easy to read.* Here’s the main bit:

Microsoft irrevocably promises not to assert any Microsoft Necessary Claims against you for making, using, selling, offering for sale, importing or distributing any implementation to the extent it conforms to a Covered Specification (“Covered Implementation”), subject to the following. This is a personal promise directly from Microsoft to you, and you acknowledge as a condition of benefiting from it that no Microsoft rights are received from suppliers, distributors, or otherwise in connection with this promise. If you file, maintain or voluntarily participate in a patent infringement lawsuit against a Microsoft implementation of such Covered Specification, then this personal promise does not apply with respect to any Covered Implementation of the same Covered Specification made or used by you. To clarify, “Microsoft Necessary Claims” are those claims of Microsoft-owned or Microsoft-controlled patents that are necessary to implement only the required portions of the Covered Specification that are described in detail and not merely referenced in such Specification. “Covered Specifications” are listed below.

This promise is not an assurance either (i) that any of Microsoft’s issued patent claims covers a Covered Implementation or are enforceable or (ii) that a Covered Implementation would not infringe patents or other intellectual property rights of any third party. No other rights except those expressly stated in this promise shall be deemed granted, waived or received by implication, exhaustion, estoppel, or otherwise.

The ConsortiumInfo.org blog has an excellent analysis of both the official statement text and the FAQ that follows.

I like that they went and called it a “promise”, much as I did when announcing Sun’s similar promise on the SAML2 standard and the Web SSO Interop specs in this post in June. For some reason, I’ve noticed that non-lawyers get spooked by anything called a “covenant not to sue”, I suppose because it contains the “s-word”. So this clear language and the deep assurances to developers that Microsoft has offered today are very welcome indeed, and a huge contribution to what is shaping up to be a trend.

I see some OSIS-related triumphalism about this, and it certainly seems that OSIS discussions of late have been an important driver of this new development, as Johannes rightly notes. It does look as though there are a few remaining questions that need to be answered (my colleague Gerry Beuchelt poses some here) before we know whether non-Microsoft developers of CardSpace-compatible implementations should feel similarly at ease.

I’m sure we’ll learn more as we go. In the meantime, congrats to Kim Cameron et al. for their work on this. Having negotiated these things with Sun lawyers several times in the past, I’ve come to respect the world of IPR declarations as a technology in and of itself, one that’s difficult to master.

*Okay, after all these years, I finally looked up estoppel — turns out it means non-repudiation. Cool.

UPDATE: Since Simon Phipps’s commentary on the subject mentions this post, people coming to Pushing String for the first time may want to check out my further commentary above.

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2 Comments to “Microsoft’s new promise: a welcome development”

  1. […] I got this link from Eve, and to think, I never even knew there was a consortiuminfo.org. The Microsoft Open Specifications Promise irrevocably lets any interested parties implement and use a list of technologies without fear of getting sued (at least sued by Microsoft). It is similar in tone and scope to earlier declarations about the Office XML formats, and the declaration from Sun about UBL. I’m not a lawyer, so if I’ve described this badly, get a real lawyer to explain it. :-P This is a smart move; since obviously a great deal of work went into producing these standards, I’m sure Microsoft plans to benefit more by growing the “whole market” (in the language of _Crossing the Chasm_) then they would by nickle-and-dime asserting patent rights. They also come out far, far better in public opinion, especially among those most affected by these standards. There’s another angle worth considering–the defensive. Giving away patent rights carte blanche might at first seem like a funny kind of defense, but here’s how it works: after today, what would happen if BigWebServicesCo started shaking down implementers of WS-Whatever? The attacker would be savagely torn apart in the court of public opinion, that’s what. Submarine patents are dirty business, so for a bigger target, creating an environment more hostile to such bad behavior is a powerful strategy. […]

  2. Security Blankets

    I see David Berlind has been asking for my opinion on Microsoft’s new non-assert covenant . Keeping in mind that (a) Kim didn’t send me an e-mail to tell me about it, let alone an advance review copy like Andy Updegrove , and (b) I have been in …