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From Jeffrey Thompson <jt...@us.ibm.com>
Subject RE: CCLA: "by combination" language
Date Fri, 02 Jun 2006 12:39:33 GMT
"Dittert, Eric" <eric.dittert@intel.com> wrote on 06/01/2006 09:58:00 PM:

> >From: Cliff Schmidt [mailto:cliffs@apache.org]
> >Sent: Wednesday, May 31, 2006 3:45 PM
> >
> >
> >It is not the case that *any* patent is eventually licensed -- only
> >those patent claims necessarily infringed by the Work due in part to
> >its inclusion of the Contribution.
> What confuses me a bit is that the CCLA does not seem (to me) to be
> clear about that qualification ("... due in part to its inclusion of the
> Contribution")
> The CCLA just says "those patent claims licensable by You that are
> necessarily infringed by Your Contribution(s) alone or by combination of
> Your Contribution(s) with the Work to which such Contribution(s) were
> submitted."  My reading of the concerns of Doug and others is that if
> You have contributed A and You have a patent that is necessarily
> infringed by any other part of the Work, B, then the CCLA grants a
> license to that patent.  The reasoning is that if B alone necessarily
> infringes, then almost certainly the combination of A and B necessarily
> infringes.
> Cliff implies that this is not the intent, but it does seem to be a
> possible interpretation.

In the patent interpretation context, the term "combination" has a well 
settled meaning and does not mean what you think that it might mean.  A 
patent reads on the combination of A and B iff both A and B are necessary 
to implement the patented invention.

But, that's not the issue that Doug brought up.  The question is not 
whether patents that read solely on the remaining part of the Work are 
licensed.  The question is whether patents that read on combinations of 
your Contribution and future versions of the Work are licensed. Completely 
different question.

Staff Counsel, IBM Corporation  (914)766-1757  (tie)8-826  (fax) -8160
(notes) jthom@ibmus  (internet) jthom@us.ibm.com (home) jeff@beff.net
(web) http://www.beff.net/ 

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