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From Ross Gardler <rgard...@apache.org>
Subject Re: Apache license 2.1 and 2.2?
Date Fri, 30 Mar 2007 13:08:40 GMT
William A. Rowe, Jr. wrote:
> Ross Gardler wrote:
>> There was considerable
>> interest in the Apache licenses to further consistency among open source
>> projects, but it could not be fully supported for universities because
>> its patent license was considered too broad [...]
> 
> I was interested, of course, in this sentence in particular, so sought out
> the paper to determine what those concerns were.  Again citing [1]...
> 
> 6.0 PATENTS AND THIRD-PARTY PATENT LICENSES
> Discussion of how patents should be addressed in connection with collaborative
> open source projects consumed about half of the Summit time.
> The key issue was whether institutions can give a wide patent grant that
> would cover all the patents they have an interest in - including patents
> that may have arisen out of the work of individuals who are not contributors
> to the open source project, or that may have arisen out of work
> funded by third parties.
> The belief among some institutions was that the commonly used Apache
> form of contribution agreement required a patent license that was too
> broad, because it did not take into account the possibility that a contributor
> institution would have previous commitments to third parties to whom
> the patent had already been licensed, or who may have funded or participated
> in the relevant research. For some of the larger research universities,
> simply determining the relevant patents and agreements can be a
> daunting logistical task.
> Two outputs of the Summit addressed these concerns: the ECL 2.0 outbound
> license and the new form of institutional contribution agreement.
> These revisions were designed to accommodate concerns about the
> reach of the patent license provisions in the contributor agreement. The
> patent license provision was modified so that no license would be granted
> to patents developed by anyone other than the author of the contribution,
> and also to recognize the possibility that there may be funding agreements
> or other prior commitments that limit the institution’s flexibility to
> grant a license.
> While these licenses represent progress, they also reflect some policy
> decisions by participating institutions that bear long-term thought. For
> example, a license to patents that arise only out of the work of contributors
> to the project does not cover patents that arise out of other work at
> the university, reflecting a choice to protect the ability of individual inventors
> at the university, and the ability of the university itself, to benefit from
> the commercialization of the patent, where licensing these patents in connection
> with community projects may be beneficial to the community as a
> whole.
> 
> 
> In reading this, of course, there is nothing 'unique' to Academia.  Simply
> substitute IBM, Sun, Microsoft or any other organization with a broad
> patent portfolio and such decentralization that you are unlikely to meet
> every inventor in the company who's patents your design might touch on.
> 
> So, jumping to the ASL [2]
> 
>    3. Grant of Patent License. Subject to the terms and conditions of
>       this License, each Contributor hereby grants to You a perpetual,
>       worldwide, non-exclusive, no-charge, royalty-free, irrevocable
>       (except as stated in this section) patent license to make, have made,
>       use, offer to sell, sell, import, and otherwise transfer the Work,
>       where such license applies only to those patent claims licensable
>       by such Contributor that are necessarily infringed by their
>       Contribution(s) alone or by combination of their Contribution(s)
>       with the Work to which such Contribution(s) was submitted. If You
>       institute patent litigation against any entity (including a
>       cross-claim or counterclaim in a lawsuit) alleging that the Work
>       or a Contribution incorporated within the Work constitutes direct
>       or contributory patent infringement, then any patent licenses
>       granted to You under this License for that Work shall terminate
>       as of the date such litigation is filed.
> 
> "where such license applies only to those patent claims licensable
> by such Contributor"
> 
> OK.  What's licensable by Professor Ross (injecting you into the discussion
> for a moment as one of the faculty).  

Err.. I'm no Professor, nor do I work for a US institution, I'm UK based
and our institutions have not (to date) had a problem with the patent
clause.

Furthermore, this summit was held prior to my joining the OSS Watch
team, I know very little of it.

In this thread I'm wearing my ASF hat, not my OSS Watch hat (I do have
an OSS Watch interest, but as I say for UK institutions this has not
been an issue to date).

 From an ASF point of view having such a report in public will prompt
questions (in fact already has prompted questions to me with my OSS
Watch hat on, I'm having to duck at present).

> Enlighten me :)

I'd love to, but I can't, hence my questions. Hopefully someone else can.

[Incidentally OSS Watch's legal bod, Rowan Wilson (not a lawyer), has
made a request to join this list, I can vouch for his ability to speak
sensibly and knowledgeably on this list and request that the moderators
allow him through]

Ross


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