Proposed Statement Draft for ebXML CPPA TC Statement on IBM IPR

Date:      Thu, 20 Jun 2002 21:39:46 -0700
From:      James Bryce Clark <jamie.clark@mmiec.com>
To:        ebxml-cppa@lists.oasis-open.org
Subject:   Proposed Statement Draft

At the time of the last specification advancement vote, in order to reach a comfort level to permit broad consensus prior to voting, we discussed the need to adopt some kind of statement to indicate awareness of user community issues with the IBM IPR claims against CPPA, and appropriate disclaimers regarding the state of those claims. I was asked to provide a draft. Here it is.

Regards,
Jamie Clark

Draft Statement

The ebXML CPPA Technical Committee recently voted to advance its 2.__ specification for OASIS membership review as a candidate standard. Consistent with that vote, we have no reservations regarding the substantive quality or technical readiness of the specification. However, our own review process occurred during the same period as an unexpected IPR declaration of patent claims made by IBM in March 2002, subsequent strong public reactions to that declaration, and several rounds of negotiation and discussion. IBM issued and posted a revised declaration on May 16, 2002, and in response to our further questions provided an additional explanatory statement on May 30th.

We have made significant progress in discussions with IBM and the ebXML community, with effective assistance from OASIS staff. Ultimately we voted unanimously on May 31 to advance the specification, based on our assessment that the issues raised by the claims are being negotiated appropriately, and that IBM is working with OASIS in good faith to attempt to define final terms satisfactory for our user communities. However, not all of the issues are yet resolved, and the final language for some of the restrictions may not have been reached. The TC notes that its advancement of the standard does not indicate an evaluation of the IBM claims, nor an endorsement or guarantee of the commercial suitability of the eventual IPR terms. Refinement of those terms is continuing. The TC reserves the right to withdraw the standard if final permissions and terms appropriate to ebXML's goals cannot be obtained.

The TC is concerned about several yet unresolved aspects of the current IPR declarations. The absence of permission to develop nonprofit derivative works from the specification continues to impair several significant open source development efforts. We hope to obtain clearer use permission for such efforts consistent with conventional open source development.

The timing of the declarations is also unfortunate. IBM made substantial donations in 1999 of technical work that then appeared to be free of claims. That work was considered in the formulation of the final approved ebXML standards throughout 2000 and 2001. Only in 2002 was it disclosed that IBM discovered that relevant patents and patent applications had been in process throughout that period. A substantial part of the ebXML community relies on low-cost vendor-neutral standards use and tools. Timely earlier disclosure of the claims might have permitted a less disruptive exclusion of, or negotiation regarding, patent-impaired work. Appropriate action in light of those impairments, and refinements to the IPR rules to reduce delayed-disclosure loopholes in the future, may be the subject of further analysis by OASIS members.

James Bryce Clark
VP and General Counsel, McLure-Moynihan Inc.   www.mmiec.com
Chair, US ABA Business Law Subcommittee on Electronic Commerce
www.abanet.org/buslaw/cyber/ecommerce/ecommerce.html
1 818 597 9475   jamie.clark@mmiec.com jbc@lawyer.com
This message is neither legal advice nor a binding signature.  Ask me why.

Prepared by Robin Cover for The XML Cover Pages archive. See the document on 'Patents and Open Standards'.

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