Dear Juanjo, dear Arian,
Let me try to summarize SAPs position (which seems to be misunderstood) and what we perceive to be the consortium intent after all (and probably several of the proposed solutions will in the end be acceptable).
The current DoW indeed does restrict the access to background due to overly broad language (background instead of complimentary background and the override rules between the sections). Note that these changes restricting the access was made at the request of some French consortium partners, not SAP. Despite this restriction, the Collaboration Agreement indeed *does* give the intended royalty free access to all parties to the Collaboration Agreement. The current DoW alone as currently worded, does not.
What the consortium *agreement* seems to be is that access to all foreground and background *in GE implementations* (i.e. complementary foreground and background) is always royalty free for all parties to the FI-PPP agreements and while there is an ongoing discussion around this (because that is *not* covered by any of the current agreements is that the parties in the OIL will also be granted royalty free access despite them not being party to any of the FI-PPP contracts. Note that SAPs position on this was that:
a) Access to the GE *specifications* needs to be not only open and royalty free but also needs a patent grant allowing conforming open source implementations that are guaranteed not to violate any essential patents of the FI-PPP members (something the SAP owned GE specs are licensed under)
b) The GE *implementations* of SAP are all released under a very permissive open source license (BSD) to ensure both royalty free access to the FI-PPP, OIL users or anybody else.
c) Where SAP needs to use SAP background IP *outside a GE implementation* (i.e. outside complimentary background) we can maintain control over that.
It was point c) that actually prompted our current attempt to clarify the language of the warring provisions of the different paragraphs in the FI-Ware DoW, certainly no desire to charge for any GEs inside or outside the FI-PPP.
Burkhard Neidecker-Lutz
Fellow | Next Business and Technology AR. Mgmt AG
SAP AG | Vincenz-Priessnitz-Strasse 1 | 76131 Karlsruhe | Germany
T +49 6227 7-52533 | M +49 160-8896858 | E burkhard.neidecker-lutz at sap.com<mailto:burkhard.neidecker-lutz at sap.com>
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From: fiware-pcc-bounces at lists.fi-ware.eu [mailto:fiware-pcc-bounces at lists.fi-ware.eu] On Behalf Of Juanjo Hierro
Sent: Montag, 13. Mai 2013 08:29
To: fiware-pcc at lists.fi-ware.eu
Cc: Theilmann, Wolfgang; fiware-wpl at lists.fi-ware.eu; fiware-wpa at lists.fi-ware.eu; fiware-ga at lists.fi-ware.eu
Subject: [Fiware-pcc] Fwd: RE: Issue on IPR management of background associated to background of FI-WARE GEis
Hi,
Please find below the response by our PO, Arian Zwegers, to my email describing the issue on IPR management of background associated to FI-WARE GEis.
Essentially, our PO:
1. asks us to clearly state what is our position regarding IPRs to background associated to the FI-WARE GEis
2. would go for a solution consisting in a formal letter by Jesús Villasante o Peter Fatelning (Head and Deputy Head of Unit, respectively) stating that the fact that contents of B.2.3.4 are refining contents of clause 41 is considered valid from a legal perspective by the EC
I understand that, regarding point 1, we can clearly state that:
The commitment by FI-WARE partners is to grant royalty-free access to background and foreground associated to the FI-WARE GEis for the execution of FI-PPP projects (including FI-WARE), in line with what is stated in the Collaboration Agreement. Note that this not only applies to partners of FI-PPP projects but also third party users of the FI-WARE OIL (since offering FI-WARE GEis royalty-free to them is essential for the execution of FI-WARE and the FI-PPP program).
Unless we receive any objection by end of this week, in which case we would have to confirm the position of each partner to send a detailed report on each partner's position to the EC, I will provide this statement in a response to the mail of our PO.
Regarding point 2, the solution proposed by our PO it's ok for Telefónica, but we need to know if anyone objects. Please also express any objection by the end of this week.
Please ask your legal representatives about the questions above, if you need to.
Best regards,
-- Juanjo
-------- Original Message --------
Subject:
RE: Issue on IPR management of background associated to background of FI-WARE GEis
Date:
Thu, 9 May 2013 04:34:04 +0000
From:
<Arian.ZWEGERS at ec.europa.eu><mailto:Arian.ZWEGERS at ec.europa.eu>
To:
<jhierro at tid.es><mailto:jhierro at tid.es>, <Ragnar.Bergstrom at ec.europa.eu><mailto:Ragnar.Bergstrom at ec.europa.eu>
CC:
<CNECT-ICT-285248 at ec.europa.eu><mailto:CNECT-ICT-285248 at ec.europa.eu>, <jdps at tid.es><mailto:jdps at tid.es>, <lgg at tid.es><mailto:lgg at tid.es>
Dear Juanjo,
Your explanation of the collaboration agreement is surprising. As you know, we don't know the contents.
The SAP explanation is a surprise, since it always came across that
- SAP did not want to be obliged to provide background to complementary beneficiaries, only to beneficiaries. I always thought that that was in the collaboration agreement, if anything at all.
- (since providing background needs to be done and royalty-free) removing the paragraph still keeps the perceived conflict between clause 41 (as you mentioned on Friday, SAP perceives that the clause does not allow any background to be provided to complementary beneficiaries) and the collaboration agreement. That argument is not mentioned anymore???
The second point is also still valid in the Telefonica solution.
Perhaps we should start from the beginning. What is it that the FI-WARE consortium want to say about background to complementary beneficiaries? Note that we are not interested in Telefonica's or SAP's position, only the consortium's.
Depending on the answer to the question above, I would favour the last option. Peter or Jesus could write an email. "Valid from a legal perspective" can only be tested in a court of law anyway; until then, all is opinion.
Best regards,
Arian
________________________________________
From: Juanjo Hierro [jhierro at tid.es<mailto:jhierro at tid.es>]
Sent: 07 May 2013 19:24
To: ZWEGERS Arian (CNECT); BERGSTROM Ragnar (CNECT)
Cc: CNECT-ICT-285248; Javier de Pedro Sanchez; LUIS GARCIA GARCIA; jhierro >> "Juan J. Hierro"
Subject: Issue on IPR management of background associated to background of FI-WARE GEis
Dear Arian and Ragnar,
Following our conversation last friday, I would like to explain the IPR management issue we have potentially identified in the current Grant Agreement which we would like to get solved in amendment 5.
In this mail, I will elaborate on:
1. The issue itself
2. The alternative solutions proposed by some of the partners in FI-WARE
3. Some thoughts about next steps trying to find how to solve the issue
1. The issue itself
The issue is derived from a contradiction that has been detected by SAP on different places of the Grant Agreement (the contract).
On one hand, the B.3.2.4 section on IPR included in the FI-WARE DoW (formally referred as Annex I of the Grant Agreement) states the following:
[cid:part1.08040204.00010208 at tid.es]
This paragraph was based on what we already stated in our proposal and was also requested by the EC. It was also aligned with clauses related to access rights to FI-WARE GE specifications and implementations in the FI-PPP Collaboration Agreement.
However, special clause 41 in article 7 of the Grant Agreement states the following which apparently contradicts what was said in section B.3.2.4 of the DoW:
[cid:part2.04080501.01050601 at tid.es]
Besides this, there is article of the Grant Agreement that elaborates on what interpretation should prevail in case of conflicts between different parts of the Grant Agreement:
[cid:part3.07080809.01050802 at tid.es]
That would mean that what was stated in special clause 41 in article 7 would take precedence over what was stated in section B.3.2.4 of the DoW.
It seems like it would be worth fixing this contradictions in an amendment of the DoW.
2. The alternative solutions proposed by SAP and Telefonica
2.1 Solution proposed by SAP
The solution proposed by SAP is simple: drop the conflicting paragraph on section B.3.2.4. Consequently, just relying on what the Grant Agreement states, users of FI-WARE in the context of the FI-PPP could be charged for the background associated to a FI-WARE GE implementation. However, since the Collaboration Agreement states that access to background associated to FI-WARE GE implementations has to be granted royalty-free, this 'ability' to charge for background associated to a FI-WARE GE implementation would not be executable in practice unless breaking the Collaboration Agreement.
Implementing the proposal, the Grant Agreement would become consistent, and the goal to keep access to both background and foreground granted royalty-free would be kept preserved through the Collaboration Agreement.
2.2. Solution proposed by Telefonica
Telefonica's proposal was also simple:
* Fix special clause 41 so that it reads as follows (changes marked in red):
Complementary beneficiaries enjoy the rights and bear the obligations of beneficiaries with
regard to Articles II.32, II.33 and II.34 of Annex II {Access Rights}. However, for
complementary beneficiaries, these rights and obligations are limited to foreground and background associated only to FI-WARE GE implementations developed in FI-WARE the project. Therefore, they do not extend to background that is not part of FI-WARE GE implementations or required for them to run. Complementary beneficiaries are not members of the consortium for
the purpose of this grant agreement
* Clarify paragraph in section B.3.2.4 of the DoW for the avoidance of doubt:
Access Rights to Foreground and Background associated to FI-WARE GE implementations needed for the execution of the FI-PPP projects and users who carry out experiments in the FI-WARE Open Innovation Lab as long as the FI-WARE project lasts, shall be
deemed granted on a Royalty-Free basis. Other than in exceptional circumstances and only for
Background specifically identified, no costs shall be charged for granting such Access Rights. The FI-WARE
beneficiaries will not charge any such costs to the project.
The whole idea would be to fix the Grant Agreement as to reflect what was the spirit of the program since the beginning, without the need to rely on the Collaboration Agreement. Note that the EC is party in the Grant Agreement but not the Collaboration Agreement, therefore this proposal allows the EC to act against any partner that doesn't grant royalty-free access to background and foreground associated to a FI-WARE GE implementation for the execution of projects in the FI-PPP. With SAP's proposal, it is up to partners signing the Collaboration Agreement to decide whether to sue or not any partner who decides to charge for background associated to a FI-WARE GE implementation.
Furthermore, the proposal intends to fix any uncertainties regarding usage of background of FI-WARE GE implementations by third parties users of the FI-WARE Open Innovation Lab (could be a party running an experiment on the FI-WARE Open Innovation Lab be considered as a partner of the FI-PPP ? We believe it is not so clear, so better that we make it clear that access to background and foreground associated to FI-WARE GE implementations will be granted royalty-free to third parties users of the FI-WARE Open Innovation Lab
3. Some thoughts about next steps trying to find how to solve the issue
It would be important that this issue be solved in amendment 5. Obviously, one potential alternative would be to go for one of the two proposals described in the previous point. At the current moment, the solution proposed by Telefonica was endorsed by more partners within FI-WARE (up to 14 partners). The proposal made by SAP was supported by two partners (one being SAP). The rest of partners seem to abstain.
Another possibility would be that the EC makes a formal statement that the special clause 41 doesn't get into contradiction with the mentioned paragraph in section B.3.2.4 of the DoW so the DoW in practice is refining what the clause 41 was stating in a first approach. Note that such statement to be provided by the EC should be formal and valid from a legal perspective.
Looking forward your response.
Best regards,
-- Juanjo Hierro
-------------
Product Development and Innovation (PDI) - Telefonica Digital
website: www.tid.es<http://www.tid.es><http://www.tid.es><http://www.tid.es>
email: jhierro at tid.es<mailto:jhierro at tid.es><mailto:jhierro at tid.es><mailto:jhierro at tid.es>
twitter: twitter.com/JuanjoHierro
FI-WARE (European Future Internet Core Platform) Coordinator
and Chief Architect
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