Standards, Patents, and the OSP

Arthur C. Clarke famously wrote that “any sufficiently advanced technology is indistinguishable from magic.”  Another characteristic of advanced technologies is that they often contain intellectual property (IP) that may be covered by patents.

When such a technology becomes standardized, though, implementers need to feel comfortable that they have access to the technology on a non discriminatory basis. This is typically dealt with in one of three ways: either the technology owner agrees to license necessary patents on a RAND basis, the technology owner’s agreement to license necessary patents on a RANDz basis or the technology owner agrees not to assert necessary patents.  The reason international standards exist is to enable and facilitate interoperability between multiple implementations, and it would surely limit adoption if implementers had to worry about whether they could obtain access to IP that was necessary to implement the standards.

Some examples of companies’ agreements not to assert necessary patents are IBM’s Interoperability Specifications Pledge, Sun’s OpenDocument Patent Statement, and Microsoft’s Open Specification Promise (OSP).

In the case of the OSP, we’ve published a list of covered specifications, and we’ve made a public commitment that we will not assert patents that we own (if any) which are needed to implement those specifications.  The list include ISO/IEC standards such as ISO/IEC 29500, standards from consortia such as Ecma and OASIS, and also documentation that Microsoft has published for various protocols and formats that we use in our products.  The list of covered specifications is constantly growing, and includes not only the Open XML spec itself (both ECMA-376 and ISO/IEC 29500), but also many closely related technologies including the Office binary formats, the Office 2010 extensions, and the published implementer notes.

It’s important to emphasize that the protection of the OSP applies to implementers regardless of whether they perform any other action.  You don’t need to file a request, provide notice, sign an agreement, or do anything else.  You can simply get to work implementing any of the covered specifications, and know that you have free global use of any Microsoft patent necessary to implement those specifications.  You also don’t need to consider the details of any specific patents, because the OSP’s protection applies to patents which Microsoft currently owns, patents that may be issued to Microsoft in the future, and patents that Microsoft may acquire in the future.

I’ve summarized the OSP here because I’ve been asked a few questions about it lately, and I thought it would be good to provide a simple explanation in layman’s terms of what the OSP is all about and how it works.  That said, I should add the obvious caveat that I am not a lawyer.  So if you’re looking to dig into the details of how IP issues are addressed in standards development, I’m no expert.  But that’s the point, really: you don’t need to be a legal expert, or do any kind of legal analysis, to know that you can freely implement Open XML (and many other standards) without worrying about whether a particular Microsoft patent applies or not.