A fair amount has been written today about Microsoft’s Open Specification Promise. Publications like Eweek have discussed it, and my colleague Jason Matusow has provided links to commentary across the net. From all I’ve read so far, Microsoft’s promise has been well received.
The question I’m going to address is how is this approach different from current industry practices. To those involved in the standards setting world, terms like RAND and RAND RF have intrinsic meanings. To everyone else, its just another acronym in a strange standards world of organizations made up of yet other acronyms (IEEE, IETF, W3C, AACS, DVD CCA, etc.).
Most standards bodies require their members to make licenses to their necessary patents available on what are known as RAND terms. So what does RAND mean? RAND stands for “reasonable and non-discriminatory.” Although the particular rules vary from standards org to standards org, RAND means that standards participants are required to grant standards implementers patent licenses for those patents that must be infringed to implement that specification.
To put it another way, a patent is a property right and, like other property rights, the owner can exclude other people from using it. By joining a standards organization and agreeing to grant a RAND license, a patent holder gives up its right to exclude others from using its necessary patents within the scope of the specification. Moreover, the terms that govern the use of that patent must be “reasonable and non-discriminatory.”
RAND-z or RAND-RF add another import restriction a RAND license- the patent owner cannot charge a royalty fee for use of that patent. What is still technically required, however, is that implementers of the standard must still obtain a license from the patent holder.
What makes Microsoft’s Open Specification Promise different from RAND licensing approaches is that for those specifications covered by the promise, an implementer doesn’t need to come to Microsoft to get a license. Instead, Microsoft has promised not to assert its patent rights against implementers using Microsoft’s necessary patent claims in connection with the specifications covered by the promise. Nothing needs to be signed and we don’t need to know you’re taking advantage of our promise. As long as you adhere to the promise’s limited rules, Microsoft will not take legal action against you. It’s not a free pass, since there are limited conditions that still apply, but it does ease the legal load for implementing standards.