Legal Analyst Sees Defects in Microsoft Open XML Initiative

By Steven Vaughan-Nichols  |  Posted 2005-11-23

Legal Analyst Sees Defects in Microsoft Open XML Initiative

Microsofts open standard Office XML format announcement may not be that big a deal, according to one standards attorney.

When Microsoft announced Monday that it was submitting its Office 12 XML format specifications to Ecma International to become an open standard, many took a wait-and-see attitude toward it. They did so because Microsoft had not revealed a license for its proposed standard.

Microsoft is expected to reveal the license text some time this week, even as most businesses closed early Wednesday for the long Thanksgiving holiday weekend.

Alan Yates, the general manager of Microsofts Information Worker Strategy, has said, though, that "the new license that will accompany the Open XML format with the standards organization will go well beyond traditional standards licensing and will be very positive for the vast majority of developers, even open-source developers."

A number of companies and organizations co-sponsor the submission of the Microsoft Office Open XML document format technology to Ecma, including Apple Computer Inc., Barclays Capital of Barclays Bank Plc, BP Plc, the British Library, Intel Corp., Statoil ASA and Toshiba America Inc.

However, Microsoft has released its Patent Protection Covenant for its Office XML formats.

The Redmond, Wash., company also gave Andrew "Andy" Updegrove, "a partner with Gesmer Updegrove LLP, a Boston law firm, and the editor of, an early look at the Covenant. Updegrove was not impressed.

In his evaluation of the Microsoft Covenant, Updegrove compared it with Sun Microsystems Inc.s non-assertion pledge to OASIS in favor of the OpenDocument format.

Updegrove said, "The upshot is that the Sun covenant is far superior in several important respects to the Microsoft pledge."

Click here to read what analysts and senior Microsoft XML technology developers think about the move to open Office XML document format.

Jean Paoli, co-inventor of XML and a Microsoft senior developer, contends that Microsoft hopes "to create an open standard that will enable customers, technology providers and developers around the globe to work with the Office Open XML formats without barriers, with or without Microsoft products."

Thats because Sun places its covenant more under the control of OASIS (Organization for the Advancement of Structured Information Standards), whereas Microsoft is the sole authority on its Covenant and what it will cover in the future.

That said, "It is important to note that both of these covenants suffer from a common failing, which is that, as between the patent owner (Microsoft or Sun) and an actual implementer, there is no well-funded White Knight to swoop in to defend the small ISV. Similarly, there is no commitment to make the same covenant binding on someone that might buy the patent (the same problem relates to standards generally)," said Updegrove.

Next Page: Weighing Microsofts motives.

Microsofts Motives

Updegrove also speculates on why Microsoft put out an inferior covenant. He thinks there are three possible reasons.

"The first is that it has evil entrapment plans afoot, but I really dont think that is likely to be the case, and certainly not in each instance, since it would be rightly pilloried for doing so," said Updegrove.

"The second is that it hasnt gotten far enough through the knothole to bring itself to go as far as Sun did. The third is that it has made the calculated decision that this is as far as it needs to go to obtain the objective that it is trying to achieve, which is to head off ODF [OpenDocument Format] at the pass," he said.

"My guess is that its a combination of two and three. Im told by those I know in Microsoft that making such a covenant was a difficult and contentious decision internally, and it would be tough to sell internally more than the absolute minimum necessary to arguably do the job," said Updegrove.

Click here to read David Courseys commentary on whether Microsofts move to open the Office XML format comes with strings attached.

Still, in a Ziff Davis Internet interview, Updegrove said, "I was surprised on a few points, only because I think that Microsoft could have narrowed the gap a bit more with Sun without really giving away much that matters."

"As it is, there are so many differences that every serious analysis should yield the same conclusion--the Microsoft covenant doesnt cut it, even if Ecma does adopt their formats, unless the covenant is beefed up. If Monday was meant to be a bombshell, this turns it in large measure into a dud."

Some open-source figures arent happy, not just with Microsofts patent efforts, but other, more superficially open-source friendly patent efforts such as the OIN (Open Invention Network) and OSDLs (Open Source Development Labs) Patent Commons Project.

At the UN World Summit on the information society in Tunis, Tunisia, open-source leader Bruce Perens said in a speech, "We fought the software patent camp off successfully in Europe last year, but theyve already started a new offensive, and now they are using ineffective patent pools to deceive legislators that the problem is solved for open source and that laws supporting software patenting can now go ahead. Planning to defend open source with a patent pool is like planning to hold off the avian flu with a box of tissues."

Florian Mueller, European anti-patent activist and founder of the campaign, agreed.

"Those announcements by the OIN and the OSDL grossly overstate the effectiveness of those partially ill-conceived approaches. By misleading people, they dont put us any closer to a real solution, but even further away from one."

For these people, a complete revision of patent law, not patent pools or patent protection covenants, is the only real way to open software standards.

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