http://www.fsf.org/news/dont-depend-on-mono

[Adam Jackson]

On Tue, 2009-07-07 at 14:27 +0100, Jonathan Underwood wrote:

> Not answering Ajax's question specifically, but this looks a bit iffy:
> 
> "If you file, maintain, or voluntarily participate in a patent
> infringement lawsuit against a Microsoft implementation of any Covered
> Specification, then this personal promise does not apply with respect
> to any Covered Implementation made or used by you."
> 
> So, say a few years have passed and C# and the CLI is now a very key
> component of the stack, and Red Hat (for example) filed a patent
> lawsuit against MS for something unrelated, MS could turn around and
> revoke the promise not to sue Red Hat for distributing a C#/CLI
> implementation, crippling the product that Red Hat now relies on.

So there's two things wrong here.  The first one is the "turn around"
statement.  The very first sentence starts with "Microsoft irrevocably
promises".  Any assurance made by the Community Promise is forever.

The second is the retaliation model.  In the language of the Promise:
"If you [sue for patent] against a Microsoft implementation of any
Covered Specification [...]".  A Covered Specification is one that
they're covering with this promise.

So, if Frobnitz Inc. distributed Mono, and then filed suit against
Microsoft for infringing one of Frobnitz' patents in the Microsoft C#
implementation, they would lose the right to distribute Mono [1].
However, if Frobnitz distributes Mono, and then files suit against
Microsoft for a rendering technique patent used in Internet Explorer,
they would still be allowed to distribute Mono [2].

In other words, it's a MAD agreement.  You're not even agreeing that any
patents they may hold that read on the Covered Spec are _valid_.  You're
simply agreeing that neither of you will assert any patent claims
against the other, for the scope of the Covered Specs, iff you chose to
use/make/sell/distribute/etc an implementation of one of the Covered
specs.

Now this still might not be something you want to agree to.  For
example, if you hold patents that you think already read on MS's C#
implementation, you might not want to lose the ability to exercise them.
The question may also be made irrelevant by some third-party patent
claim that you think would read on a Covered Spec.

Finally, there is the detail that the Promise only extends to what they
call "Microsoft Necessary Claims", which are patents necessary to
implement any required portion of the spec.  There's some wiggle room in
the word "necessary"; you might be able to implement a given feature
some other way, in which case the patent would presumably not be
covered.  There's also no assurance over patents involved for optional
functionality.

(Not a lawyer.  Not even a Microsoft fan.)

[1] - Specifically, they would lose any rights given to them by the
Community Promise.  They might still have the right to distribute
through some other legal mechanism.

[2] - Again, they would only still retain the right to distribute to the
extent that they are not infringing some other legal agreement between
them and Microsoft.

- ajax
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