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From Joe Schaefer <joe+apa...@sunstarsys.com>
Subject Re: [Draft] New ASF/JCP Policies
Date Thu, 28 Jun 2007 22:22:01 GMT
"robert burrell donkin" <robertburrelldonkin@gmail.com> writes:

> On 6/28/07, Joe Schaefer <joe+apache@sunstarsys.com> wrote:

[...]

>     Section 5E of the JSPA expressly terminates the (patent) IP flow
>     from spec lead to downstream licensees in the case of a derivative
>     work which is not tested against a TCK.  That section, IMO, is
>     incompatible with open source licensing.
>
> patents are generally tough for open source
>
> the problem is the shear number of dubious patents issued in
> particular (but not only) by the US patent office 
>
> by simply saying that open source software may not infringe any patent
> issued in any jurisdiction in the world would 
> limit open source to only very trivial applications. given the
> millions of patents issued, it would also be a test that 
> is almost impossible to undertake. if the test were to be patents
> found to be valid, then the question would be in which 
> court in which jurisdiction. globally, this whole area is in flux
> ATM. in the US, the supreme court will need to tackle 
> these issues before there is legal certainty. in the EU, software
> patents are formally not enforceable but are frequently 
> issued.
>
> the whole area is a complete mess and it's not irrational for open
> source to ignore the issue until it's clarified 

I think you're missing the point a bit.  Section 5E relates to parties
who haven't signed the JSPA, yet are somehow being bound by it.  If
we don't have a legal responsibility to pass those terms and conditions
along to our users, I'd argue that we have an ethical duty to do so.

I think Roy tried to address this at one point and got shot down
by Sun.

-- 
Joe Schaefer

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