Patent ambush in the OOXML specification

Microsoft Patent Strategy

Microsoft strategy on patents over OOXML is to provide 2 useless "Covenant Not to Sue" (CNS) and one "Open Specification Promise" (OSP) and to hide one RFRAND patent licence. Out of the 3 possibilities, only the patent licence has a legal value, and is legally binding. Many people recognised the flaws of the CNS and the OSP as they grant no rights whatsoever, the Microsoft strategy is thus to hide the licence terms of their RFRAND licence as long as possible. Those licence terms are not public, and the question is wether the ISO patent policy could help to get those licence terms publicised.

One Microsoft employee mentioned clearly their strategy here:

Some companies (sometimes that have a large commercial operation) prefer to enter into a bi-lateral license agreement as opposed to relying on a CNS or OSP-like promise.

Patent Ambush

incomprehensive patent snippets

  • EP1376387 Word-processing document stored in a single XML file - A word processor including a native XML file format is provided. The well formed XML file fully represents the word-processor document, and fully supports 100% of word-processor's rich formatting. There are no feature losses when saving the word-processor documents as XML. A published XSD file defines all the rules behind the word-processor's XML file format…
  • EP1439464 Converting XML code to binary format - A technique for converting XML code to a binary format involves identifying code elements that appear in the XML code and storing them in an element palette. The XML code is then encoded by selecting predefined commands that represent the XML text-based instructions and associating the predefined commands with references to corresponding code elements in the element palette. The commands and associated references form fixed-length tokens that can be further compressed. During conversion, data is extracted and stored in an uncompressed format. The conversion produces a binary output that contains the element palette, the data, and the tokens (compressed or uncompressed). …
  • Google Patent Search: Microsoft XML
  • NZ Patent 525484: Word-processing document stored in a single XML file that may be manipulated by applications that understand XML, Source
  • XML coverpages, Microsoft Files for Patents Related to XML Parsing and Word Processing, 2004 (Alberto: it is clear that Microsoft was preparing in 2004 its patent armory re XML and word processing)

Compatibility with ISO guidelines

The recent patent policy of ISO

[..] any party participating in the work of the Organizations should, from the outset, draw their attention to any known patent or to any known pending patent application, either their own or of other organizations. In this context, the words “from the outset” imply that such information should be disclosed as early as possible during the development of the Recommendation. … that information should be provided in good faith and on a best effort basis, but there is no requirement for patent searches. In addition to the above, any party not participating in Technical Bodies may draw the attention of the Organizations to any known Patent, either their own and/or of any third-party.

OOXML vs. ODF patent conditions

Groklaw 2005:


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.

MS Conveneant Not to sue (CNS) — no patent license

Microsoft irrevocably covenants that it will not seek to enforce any of its patent claims necessary to conform to the technical specifications for the Microsoft Office 2003 XML Reference Schemas posted at (the “Specifications”) against those conforming parts of software products. This covenant shall not apply with respect to any person or entity that asserts, threatens or seeks at any time to enforce a patent right or rights against Microsoft or any of its affiliates relating to any conforming implementation of the Specifications. This statement is not an assurance either (i) that any of Microsoft’s issued patent claims cover a conforming implementation of the Specifications or are enforceable, or (ii) that such an implementation would not infringe patents or other intellectual property rights of any third party. No other rights except those expressly stated in this covenant shall be deemed granted, waived or received by implication, or estoppel, or otherwise. In particular, no rights in the Microsoft Office product, including its features and capabilities, are hereby granted except as expressly set forth in the Specifications.

Microsoft Open Specification Promise

Source: Microsoft - according to that page also OOXML is covered

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.


Both the OSP and the CNS are worded using what are for practical purposes identical grammatical constructs that as far as we can tell grant no rights whatsoever whilst leaving the superficial appearance of a grant of rights. … the enabling language of the OSP and the CNS, read literally, describe empty sets of rights expressly granted.

Sam Hiser, A closer Look at OOXML 5/2007

The patent-protection pledge only protects what is explicitly specified in the standard. Microsoft's Open Specification Promise states that the company will not sue anyone for implementing the explicit/visible parts of the OOXML specification; however, there are numerous undocumented facets and behaviors of the OOXML formats which, if implemented by another entity, would risk "intellectual property" violations against Microsoft software. Additionally, there are serious gaps in the promise not to sue. …The patent promise of OOXML has a level of uncertainty and a gap of protection … that could adversely impact the openness and availability of the standard to implementers.

Norbert B.: GPL incompatible?

Richard Stallman, the author of the GPL and LGPL licenses, has publicly stated that relying on Microsoft's promise (this presumes accepting Microsoft's patents as valid) would violate the GPL

winterford: Developers warned over OOXML patent risk:

Ronald Yu, a U.S. patent agent and academic, said that smaller developers should have concerns about some terms used in the OSP.

…Yu questioned whether even the most technically well-informed and legally-sophisticated developer would be able determine exactly which elements referred to within the 6,000 pages of the specification are affected by patents that aren't covered under the OSP.
If this coverage is not explicitly defined, Yu asked, how can an organization be sure Microsoft won't still be entitled to sue it?

Sun OpenDocument Patent Statement, submitted by Sun Microsystems, Inc., September 29, 2005

Sun irrevocably covenants that, subject solely to the reciprocity requirement described below, it will not seek to enforce any of its enforceable U.S. or foreign patents against any implementation of the Open Document Format for Office Applications (OpenDocument) v1.0 Specification, or of any subsequent version thereof ("OpenDocument Implementation") in which development Sun participates to the point of incurring an obligation, as defined by the rules of OASIS, to grant (or commit to grant) patent licenses or make equivalent non-assertion covenants. Notwithstanding the commitment above, Sun's covenant shall not apply and Sun makes no assurance, covenant or commitment not to assert or enforce any or all of its patent rights against any individual, corporation or other entity that asserts, threatens or seeks at any time to enforce its own or another party's U.S. or foreign patents or patent rights against any OpenDocument Implementation.

This statement is not an assurance either (i) that any of Sun's issued patents cover an OpenDocument Implementation or are enforceable, or (ii) that an OpenDocument Implementation would not infringe patents or other intellectual property rights of any third party.

No other rights except those expressly stated in this Patent Statement shall be deemed granted, waived, or received by implication, or estoppel, or otherwise.

Source: OASIS


Patent Commons - the project collects patent licensing, indemnification agreements and pledges in the area of open source.

Microsoft and Patents - old and outdated page by Hartmut Pilch: "Microsoft Corporation grew large and successful without patents, relying instead on copyright. Initially, Bill Gates was very critical of software patentability. However, as Microsoft began to play the game successfully, it became one of the staunchest supporters of software patentability."

Microsoft has a history to interfere into internal matters of foreign nations. Not only did the American company flood the European Parliament with numerous lobby outfits to change domestic software patenting rules, or recently ignored and insulted European competition authorities that imposed moderate interoperability sanctions. In 2005 Gates (as reported by their PR officials to Borsen) even threatened the Danish Prime Minister Rasmussen to cut jobs in Denmark, provided it would block the EU software patents directive.1 Although Denmark had a binding2 Council mandate by Folketing to ask for a reopening of the debate the Danish government delegation broke the law and satisfied Microsoft.

It is unknown if software patenting is really beneficial for Microsoft or useful for the defense of its markets. It recently seemed as if Microsoft attempts to fulfill all urban legends about its software patent strategy. CNN: Microsoft patent infringement accusations against Linux products, no substantiation of these claims so far. Interestingly Microsoft heavily suffers from 'patent troll' assaults.

ISO/IEC Directive

2.14 Reference to patented items

2.14.1 If, in exceptional situations, technical reasons justify such a step, there is no
objection in principle to preparing an International Standard in terms which include the use of
items covered by patent rights – defined as patents, utility models and other statutory rights
based on inventions, including any published applications for any of the foregoing – even if
the terms of the standard are such that there are no alternative means of compliance. The
rules given below and in the ISO/IEC Directives, Part 2, 2001, Annex H shall be applied.
2.14.2 If technical reasons justify the preparation of a document in terms which include the
use of items covered by patent rights
, the following procedures shall be complied with.
a) The originator of a proposal for a document shall draw the attention of the committee to
any patent rights of which the originator is aware and considers to cover any item of the
proposal. Any party involved in the preparation of a document shall draw the attention of
the committee to any patent rights of which it becomes aware during any stage in the
development of the document.
b) If the proposal is accepted on technical grounds, the originator shall ask any holder of
such identified patent rights for a statement that the holder would be willing to negotiate
worldwide licences under his rights with applicants throughout the world on reasonable
and non-discriminatory terms and conditions. Such negotiations are left to the parties
concerned and are performed outside ISO and/or IEC. A record of the right holder's
statement shall be placed in the registry of the ISO Central Secretariat or IEC Central
Office as appropriate, and shall be referred to in the introduction to the relevant document
[see ISO/IEC Directives, Part 2, 2001, H.3]. If the right holder does not provide such a
statement, the committee concerned shall not proceed with inclusion of an item covered
by a patent right in the document without authorization from ISO Council or IEC Council
as appropriate.
c) A document shall not be published until the statements of the holders of all identified
patent rights have been received
, unless the Council concerned gives authorization.
2.14.3 Should it be revealed after publication of a document that licences under patent
rights, which appear to cover items included in the document, cannot be obtained under
reasonable and non-discriminatory terms and conditions, the document shall be referred back
to the relevant committee for further consideration.

German criticism of RA Schiangl

  • Wiwo mentions also DIN 820

Required portions

So, unless I am still missing something or being stupid (more pie), I come back to my earlier conclusion that it is completely unclear whether or not the OSP is sufficient or not, and the National Bodies need to insist as a matter of urgency that MS clarify the position.

GPL compatibility

If there are issues with GPL implementations then there are IP issues with OOXML. Microsoft implicitly concedes there are issues with GPL implementations.

Voting on IPR

Voices from Redmond

Q: Is this Promise consistent with open source licensing, namely the GPL? And can anyone implement the specification(s) without any concerns about Microsoft patents?
A: The Open Specification Promise is a simple and clear way to assure that the broadest audience of developers and customers working with commercial or open source software can implement the covered specification(s). We leave it to those implementing these technologies to understand the legal environments in which they operate. This includes people operating in a GPL environment. Because the General Public License (GPL) is not universally interpreted the same way by everyone, we can’t give anyone a legal opinion about how our language relates to the GPL or other OSS licenses, but based on feedback from the open source community we believe that a broad audience of developers can implement the specification(s).

A weasel answer like this speaks for the contrary. Namely, that the OSP was designed to be GPL incompatible.

Comments, additions to this small collection

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