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From "Lawrence Rosen" <lro...@rosenlaw.com>
Subject RE: Apache License : grant of patent license and derivative works
Date Wed, 30 Mar 2005 00:11:02 GMT
> Isn't the further development of the contribution in Apache also
> derivative work? If so does this mean that when X gives some software
> to Apache and we work on it to do various things, then the grant they
> gave Apache for the patents in X is no longer applicable??

Yes, the further development is probably a derivative work. The Apache
license extends to specific *claims*, and only those claims can be used for
derivative works. Other claims in the same patents, or other patents, are
not included in the original work and so are not licensed.  

> If that's true it seems to me we're screwed by definition.

I wouldn't take so pessimistic a view of it. There is a patent defense
provision in the Apache license that would go a long way to protecting
Apache's derivative works from infringement claims.

So I wouldn't say we're "screwed by definition." Just that we're "likely to
be screwed sooner or later and we'll just have to deal with it when it
happens." 

/Larry

Lawrence Rosen
Rosenlaw & Einschlag, technology law offices (www.rosenlaw.com)
3001 King Ranch Road, Ukiah, CA 95482
707-485-1242  ●  fax: 707-485-1243
Author of “Open Source Licensing: Software Freedom 
               and Intellectual Property Law” (Prentice Hall 2004)
 
> -----Original Message-----
> From: Sanjiva Weerawarana [mailto:sanjiva@opensource.lk]
> Sent: Tuesday, March 29, 2005 3:23 PM
> To: lrosen@rosenlaw.com; legal-discuss@apache.org
> Subject: Re: Apache License : grant of patent license and derivative works
> 
> "Lawrence Rosen" <lrosen@rosenlaw.com> writes:
> > Geir Magnusson wrote:
> > > The Apache License says in
> > > section 3 "Grant of Patent License"  :
> > <snip>
> > > I read this to mean that if I make a derivative work, I have no reason
> > > to believe that the patent license granted by the contributor to the
> > > original work applies to me and my derivative work.
> >
> > I read it the same way. Not only that, but I read the patent grants in
> all
> > other open source licenses the same way. A copyright license to create
> > derivative works doesn't mean you get a patent license for whatever
> > derivative works strike your fancy.
> 
> Isn't the further development of the contribution in Apache also
> derivative work? If so does this mean that when X gives some software
> to Apache and we work on it to do various things, then the grant they
> gave Apache for the patents in X is no longer applicable??
> 
> If that's true it seems to me we're screwed by definition.
> 
> Sanjiva.


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