A few years ago I bought my first house. The process was overwhelming at first, but due to the assistance of an attorney, a mortgage lender, an appraiser, an assessor, a surveyor, two insurance agents (one for the house and one for the title), a house inspector, a real estate agent, etc., the purchase occurred without problem.
But why were so many people involved? Why so much complexity?
Each, aside from having a professional specialty, looks out for a specific interest and has a duty to a particular participant in the transaction: to the buyer, to the seller, to the lender or to the tax collector.
In the end, I have my house, my land, and a little piece of paper called the Quitclaim Deed, which conveyed the seller’s interest in the property to me. The deed specifies the parties to the transaction, the amount paid, and references a legal description of the property, which reads in part like:
N 20-07-00W 94.41 feet to a lead pipe, N 21-06-30W 372.04 feet to a stone bound, N 63-17-40E 291.05 feet to a stone bound, 52-29-20E 360.60 feet to a stone bound, etc.
This style of land description, called Metes and Bounds, is particular to New England, and has been in use here since colonial times.
What is interesting, in terms of the real estate transaction, is the division of responsibilities. The attorney looks at the paperwork, but the surveyor verifies the property description. The attorney ensures that the form of the deed is in accordance with local law and customs, but he is not going to be able to tell you that your garage has been built half on your neighbor’ plot. That is the job of the surveyor.
In the end, I am happy only if I have successfully purchased the property I intended to purchase. If the formal paperwork is executed properly, and if the survey matches the bounds of the property I believe I am purchasing, then I am happy. If either of these fail, I will not be pleased with the transaction, even if the other criterion is met.
I am reminded of the above mechanisms when thinking about IP issues in Microsoft’s OOXML. The analogy works like this:
You only have full rights to implement OOXML only if you are satisfied with:
- The Conveyance = The formal language of Microsoft’s Open Specification Promise is bullet-proof
- The Survey = The technical detail of the OOXML text is complete and accurate and matches what you need to implement in your software
- The Title = Microsoft owns (and continues to own) all of the patents required to implement the portion of OOXML you wish to implement in your software
Much has been said about the first item. Microsoft has given numerous assurances, commissioned reports from very expensive law firms that all affirm that the formal language of Microsoft’s Open Specification Promise is air tight. Microsoft’s Jason Matusow boldly proclaims: “There are NO intellectual property rights issues with Open XML“. Jason claims that Ecma (who failed to notice thousands of technical flaws in OOXML before approving it) and ISO (which has been in a “see no evil, hear no evil” state of denial for the last year) both “Have Publicly Declared that No IPR Issues Exist”.
I guess I’m just not as easily impressed. Who there is looking out for your interests? Who has a fiduciary duty to you? Not Microsoft. Not Ecma. Not ISO. So you better watch out for your own interests.
So let’s ask, what is Microsoft actually promising? The Open Specification Promise says in part:
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…
…“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.
Certain rights are given to you, and the bounds of these rights are circumscribed by the stated restrictions. In this case, instead of enumerating exactly what patents are made available, they are described implicitly by these criteria:
- Microsoft owns or controls the patents
- They are necessary to implement “only” the required portions of the OOXML specification
- That portion of the specification must be described in detail and not merely referenced.
I think of the above as the “Metes and Bounds” of Microsoft’s OSP. Finer minds than mine have tried to make sense of this, parsing the language, thinking about how every word could be interpreted, etc. But you can pour over this all you want, and not determine what your rights are. Edward Coke, Lycurgus of Sparta and Moses could all declare this to be the finest legal document since the Code of Hammurabi, but that would mean little.
The key point is that because the way the OSP is crafted, your rights are intrinsically tied to the quality of the underlying OOXML specification. If that text is vague, and lacking in precision, then your rights are reduced. Your rights are secured only to the extent the text is detailed. Low quality, low level of detail or missing detail equates to lack of protection for the implementor.
Since no one who is pontificating on how there are “no IP issues” has actually read the OOXML standard, I think they should be a little less effusive in their praise. But then again, they have no duty to watch out for your best interests, have they?
Let’s look at an example, to make this concrete. DIS 29500 contains the following passage which we’ve discussed before:
126.96.36.199 footnoteLayoutLikeWW8 (Emulate Word 6.x/95/97 Footnote Placement)
This element specifies that applications shall emulate the behavior of a previously existing word processing application (Microsoft Word 6.x/95/97) when determining the placement of the contents of footnotes relative to the page on which the footnote reference occurs. This emulation typically involves some and/or all of the footnote being inappropriately placed on the page following the footnote reference.
[Guidance: To faithfully replicate this behavior, applications must imitate the behavior of that application, which involves many possible behaviors and cannot be faithfully placed into narrative for this Office Open XML Standard. If applications wish to match this behavior, they must utilize and duplicate the output of those applications. It is recommended that applications not intentionally replicate this behavior as it was deprecated due to issues with its output, and is maintained only for compatibility with existing documents from that application. end guidance]
I don’t think there is anyone out there who would argue that this part of the specification is “described in detail”. In fact it disclaims all detail. Further, it would be hard to argue that this portion is required, when the text itself so clearly recommends that applications do not try to implement it. So, I wonder whether Microsoft’s Open Specification Promise would apply to any patents necessary to implement this feature.
Would anyone assert that a plain reading of the OSP suggests otherwise?
But you might say, “Please Rob, you can’t be serious. Who would try to get a patent on laying out a footnote? That just doesn’t happen in the real world.”
But consider for Microsoft’s patent application, “Method and computer readable medium for laying out footnotes” (US20060156225A1). I’m not saying that application matches the above feature in the standard, but if it did, if it did, I’m not so sure that the Open Specification Promise would cover.
This is the essential risk with OOXML, that its rushed preparation has lead to a 6,000 page standard full of errors, omissions and ambiguities, and your rights as a implementor are reduced by this low level of quality. This is not necessarily from malice, but from neglect.
Now what if I told you, that Ecma, as part of its proposed Disposition of Comments report has added a detailed functional description to the footnoteLayoutLikeWW8 element. This is a good thing, right? Not only do you have more technical detail, but you also have more IP rights because of that detail.
So this should give us pause. An aggressive review of OOXML (thank you) has resulted in implementors having more rights under the Open Specification Promise. But along with that joy should come concerns that the OOXML standard has been very sparsely reviewed. Many NB’s complained about not being able to review it thoroughly. I know I have not read more than 20% of it. So the full set of features which are unimplementable due to vague or missing detail is unknown. This same set of features may require Microsoft patents which are not eligible under the Open Specification Promise for lack of such detail.
So this is yet another reason why a rushed review is so harmful. Not only does it leave OOXML full of technical errors, including portability, accessibility, and interoperability flaws, but the resulting pervasive lack of detail means that implementors have far less IP protection than they may think they have.
You are buying a house. The attorney has blessed the paper work, the title insurance is in hand. The surveyor shows up at the closing and says, “I’m sorry. Your property was so big and complicated, that we were able to only survey 20% of your property line in time for the closing.”
The lawyer grins and says, “All the paper work is in order. All you need to do is sign.”
What do you do?