While it is as yet unclear how Microsoft intends to pursue its claims, the matter underscores the increasing difficulty of creating high-tech industry standards of all kinds, particularly those that are intended to be widely available and royalty-free. The issue is particularly relevant in Europe, which is debating whether to make software more broadly patentable, as is the case in the United States.
Microsoft's intellectual property (IP) claims first emerged back in March, when the company said that it had "possible claims" on a technology called vertex programming, which gives developers more control over 3D effects such as lighting. The claims caused some consternation within the OpenGL Architectural Review Board (ARB), which governs the specification.
Microsoft clarified its claims somewhat at this month's quarterly ARB meeting, according to the meeting's minutes, but its proposals still appear likely to throw a wrench in the works of OpenGL, according to legal experts. At the July meeting, Microsoft also added that it may have claims to a technology called fragment shading.
Evolution of an open standard
OpenGL appeared in the early 1990s as an evolution of Silicon Graphics' (SGI) IRIX GL standard. It is now used across platforms such as Unix, Linux, Mac OS and Windows for technical 2D and 3D modeling, as well as for games such as Doom and Quake. The language is evolving as new capabilities are built into graphics acceleration cards, and graphics hardware makers such as Nvidia and ATI are voting members of the ARB.
Microsoft responded to the increasing use of OpenGL for Windows games by creating DirectX, which is focused on games on the Windows platform. However, games that use DirectX are more difficult to port to non-Windows platforms, which boosts the attractiveness of Windows for gamers. Supporters of Linux, Mac OS or other operating systems are, therefore, wary of any move by Microsoft to interfere with OpenGL.
OpenGL owes its current success to an unrestrictive licensing system, which allows developers to write to the API without a license. It also carries no royalty fees. This benefits the makers of graphics hardware, who would otherwise be stuck either paying royalties to patent holders or supporting a number of different proprietary standards. But the system only works if companies that hold relevant intellectual property agree not to press their claims, in return for the benefits of a free, unified standard.
"If one company has spent a lot of money developing a technology, they may not want to give other companies a free ride in the use of it. That's one extreme," said Matthew Warren, a partner at law firm Bristows who specializes in IP. "At the other extreme, if you have a number of companies that have been dabbling in a field, and none has a strong IP position, they can agree to have this standard freely available. If you didn't have the standard, each company would have its own proprietary interface."
What does Microsoft want?
One trouble is that Microsoft, which doesn't make graphics hardware and isn't heavily involved in non-Windows platforms, has little vested interest in supporting an open, cross-platform standard such as OpenGL, according to Warren. If Microsoft does have a valid patent claim on vertex programming, it may demand high license fees--which could upset the balance on which OpenGL is founded.
Microsoft said at July's meeting that it would offer "reasonable and nondiscriminatory" terms for the license, but the meaning of this was far from clear.
"They could ask a very high price for the technology, which would kill it," Warren said. "What Microsoft regards as reasonable and nondiscriminatory, others may not."
Microsoft said it would license the technology on a one-to-one basis, in return for intellectual property from OpenGL licensees, but this could carry its own pitfalls.
"What I think this comes down to is that it only applies to licensees in the same IP position," Warren said. "Where the licensee also has patents covering OpenGL, they could swap. A new entrant into this field, without a patent, might have to pay license fees. This favors the incumbents."
The origin of Microsoft's patents is unclear, but the company has acquired intellectual property from SGI, Nvidia, ATI Technologies, Intel and others, according to industry observers. "They've just been picking it up everywhere," said Jon Peddie, head of consulting firm Jon Peddie Research. "They have a huge library of intellectual property."
This in itself may raise questions: if SGI or another company contributed to OpenGL on the basis that they would not assert their IP rights, it's uncertain whether the companies can then sell the IP to Microsoft for it to begin asserting those rights.
A shift in licensing policy?
There is no clear-cut way to deal with such IP conflicts, but one possibility would be to shift to a royalty-based scheme such as those employed by the DVD Consortium or the Motion Picture Experts Group (MPEG). These charge royalties for the use of their technology and distribute it to members on a proportional basis.
Microsoft hinted that it would prefer an alternative licensing arrangement. At this month's OpenGL meeting, Microsoft representative Dave Aronson suggested that "other bodies have licensing terms that are more effective in a corporate sense, and we should look at adopting some of those terms."
Users of non-Microsoft platforms are also wary of Microsoft gaining additional leverage on the makers of graphics hardware, who routinely support both OpenGL and DirectX. In the U.S. Justice Department's antitrust case against Microsoft, the company was found guilty of using illegal monopolistic practices to discourage PC manufacturers from promoting software, such as Netscape's Web browser, that competed with Microsoft applications.
Microsoft's moves have caused concern within the Architectural Review Board as well. At the March meeting, Microsoft admitted it had caused "concern" among the members and apologized "for the perception that they aren't acting in good faith," according to the meeting's minutes.
At the July meeting, IBM's representative was reluctant to vote on the matter because of concerns about Microsoft's licensing terms. Intel said it would be "comfortable" entering into a one-to-one cross-license with Microsoft, but did not want the system to continue if other hardware makers were involved. Other members suggested that the technology be adopted as an optional extension, but this could lead to fragmentation of the standard.