Not Enough INCITS Voters Recommend Microsoft OOXML to ISO

With the ballot having closed among members of Technical Committee V1 of the InterNational Committee for Information Technology Standards (INCITS) advisory board over whether to recommend Microsoft's Office Open XML format to the International Standards Organization as a standard, although more members voted aye than nay, an abstention by the IEEE forced the committee not to recommend it without comments.

The 8-7-1 vote deals a setback to Microsoft's hopes to be able to fast-track OOXML's approval by the ISO without being encumbrance. Due to the Committee's unorthodox rules, a 9-7 vote would have meant passage. But the Institute of Electrical and Electronic Engineers' abstention actually dealt a more serious blow than if it had voted no, by kicking in a provision whereby a two-thirds majority of the remaining votes would have been required for the measure to pass: meaning, the vote would have to have been 10-5-1.

According to information provided to BetaNews by Linux Foundation board member and open source software attorney Andrew Updegrove, the eight yea voters were: Apple, the US Dept. of Homeland Security, the Electronic Industries Alliance, Hewlett-Packard, Intel, Sony, and of course, Microsoft. Voting nay were: IT consulting firm Farance Inc., the US bar code industry standards group GS1 US, IBM, Lexmark, the National Institute of Standards and Technology (NIST), Oracle, and the US Dept. of Defense.

The seven nay votes do not necessarily denote opposition to OOXML as a standard, although IBM's position on that matter is certainly part of the public record. V1 members will next have an opportunity to vote on whether to recommend OOXML to the ISO "with comments" - meaning, with members attaching their concerns and perhaps reservations about accepting OOXML as is.

This is a distinct possibility, especially after NIST issued a press release today saying it had voted for "conditional approval" of OOXML. That press release was probably premature, since it actually won't get an opportunity to formally characterize its position as such until the next round of balloting. Assuming a worst-case scenario where all other nay-voters are opposed and IEEE continues to abstain, the vote would be 9-6-1 - meaning one more nay-voter would have to join with NIST in favor of conditional approval.

Late today, IBM made its official opinion on the subject known in a long statement released through INCITS. Though portions appear to have been written in advance while other parts were assembled in haste, the company makes the point that Microsoft may be acting in violation of ISO rules in submitting a standard whose technological underpinnings would rely, or attempt to rely, on solely-held Microsoft patents and proprietary technologies.

Its case in point is a dramatic one: apparent applications by Microsoft for a patent on a type of footnote. BetaNews found the patent application to which IBM refers: Indeed, it's a July 2006 application yet to be granted, for a method of splitting up long footnotes referenced by one page that would otherwise consume more space than the page would otherwise allow.

By patenting a layout element, IBM contends, Microsoft may be forcing a standard for which its own development team is the principal, to depend not on vendor-neutral technology but upon the will - and the existence - of one company.

"This scenario warrants a few additional thoughts," IBM writes. "First, as the contributor of the specification, should Microsoft have any specific obligation to disclose licensing terms for patented inventions that are needed for implementation of OOXML but that are outside the Promise? Second, should the terms and conditions for such needed patent claims be identified before the specification is accepted? Third, should the same terms and conditions (including royalties) be made public and available to all implementers for such needed patent claims? Fourth, should there be some timing mechanism to discourage delay in asserting a needed patent claim (that is outside the Promise) and in disclosing its terms and conditions?"

IBM's argument could be the standards-body equivalent of lawyers for the defense sewing among the jury seeds for reasonable doubt. Today, it appears some of those seeds may have germinated.