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From "Cliff Schmidt" <cli...@apache.org>
Subject Re: FW: CCLA: "by combination" language
Date Tue, 29 May 2007 18:03:17 GMT
Apache's legal affairs committee will consider your question over the
coming months.
Please be patient.

Thanks.

Cliff

On 5/22/07, Michael Chen Lee <mchenlee@yahoo-inc.com> wrote:
> After rereading this thread, I think there is still some confusion and
> disagreement on the scope of the CLA's patent license that requires
> clarification.  To recap:
>
> In my first message I wrote:
>
> >> If one submits a contribution to an Apache project or sub-project, is
>
> >> that contribution considered to be submitted to *only* the specific
> >> project/subproject at hand or to *all* ASF projects/subprojects?  If
> >> the latter, are the patent claims licensed under the CLA those claims
>
> >> necessarily infringed by the combination of one's contribution with
> >> (a) *only* an intended project/subproject at the time the
> >> contribution was made, or (b) *all* ASF projects/subprojects?
>
> William Rowe responded, "The answer is (b)."
>
> I then gave the following example:
>
> >> - I own patent claim 1 with element A, claim 2 with
> >>     elements A and B, and claim 3 with elements A and C
> >> - I work on the HTTPD project only, and am not working on Tomcat
> >> - I submit a contribution to the HTTPD project that contains A
> >> - At the time of my submission, the HTTPD codebase contains
> >>     B, and the Tomcat codebase contains C
> >> - My patent claim 1 (A) is licensed under the CLA
> >> - My patent claim 2 (A+B) is licensed under the CLA through the
> >>     combination of my contribution (A) with HTTPD (B)
> >> - Question:  Is my claim 3 (A+C) also licensed through the
> >>     combination of my contribution (A) with Tomcat (C)?
>
> William responded: "you did *not* necessarily invoke claim 3 through
> your own action, so I don't see how a license to claim 3 would be
> triggered...."
>
> It seems to me William's second response is consistent with (a), and not
> (b).  Under (b) -- "patent claims licensed under the CLA [are] those
> claims necessarily infringed by the combination of one's contributions
> with... *all* ASF projects" -- claim 3 would be triggered by my
> contribution of element A (to HTTPD) in combination with element C (in
> Tomcat).
>
> Moreover, I think that we could use some clarity on how contributing to
> a *subproject* (as opposed to a project) impacts this patent licensing
> issue.  In other words, if I contribute solely to a specific subproject,
> are my patent claims licensed if those claims were triggered solely by
> the combination of my contribution with code from the larger project in
> which the subproject resides?  Again, I think the answer is "no."  To my
> knowledge, no one has explicitly addressed this to date.
>
> I believe that this thread, in addition to the previous thread in May
> 2006, is representative of the confusion/disagreement surrounding these
> key issues.
>
> Cliff/Roy:  Does the ASF have a consensus position on these issues?
> Could you share with us what Apache's intent was with respect to these
> issues when it drafted the CLAs?  I think Apache contributors and the
> community at large would benefit from having Apache's public position on
> this.  Again, thanks much in advance.
>
> Mike
>
> ________________________________
> michael chen lee  |  tel:  408.349.2829
> mchenlee@yahoo-inc.com
>
> -----Original Message-----
> From: William A. Rowe, Jr. [mailto:wrowe@rowe-clan.net]
> Sent: Thursday, May 10, 2007 6:19 PM
> To: Michael Chen Lee
> Cc: legal-discuss@apache.org
> Subject: Re: CCLA: "by combination" language
>
> Michael Chen Lee wrote:
> > Hi William:
> >
> > Thanks for your response, although I'm a little confused by it.  Let
> me
> > try to clarify the controversy, as I see it, by taking your example
> and
> > adding the following:
> >
> > - I own patent claim 1 with element A, claim 2 with elements A and B,
> > and claim 3 with elements A and C
> > - I work on the HTTPD project only, and am not working on Tomcat
> > - I submit a contribution to the HTTPD project that contains A
> > - At the time of my submission, the HTTPD codebase contains B, and the
> > Tomcat codebase contains C
> > - My patent claim 1 (A) is licensed under the CLA
> > - My patent claim 2 (A+B) is licensed under the CLA through the
> > combination of my contribution (A) with HTTPD (B)
>
> right - and could be used in Tomcat as well as you've granted the ASF
> the
> license to claim 2.  It's because you yourself have combined element A
> with element B by the act of your contribution.
>
> > - Question:  Is my claim 3 (A+C) also licensed through the combination
> > of my contribution (A) with Tomcat (C)?
>
> AIUI you did *not* necessarily invoke claim 3 through your own action,
> so
> I don't see how a license to claim 3 would be triggered until you
> deployed
> element C in httpd.  Nobody else can cause this to happen (unless of
> course
> patent is owned by your employer, and a coworker triggers claim 3.
> Either
> way someone who doesn't have ownership, or does not represent the owner,
> cannot do so.)
>
> The question is, was, has been and will be which claims are necessarily
> infringed by YOUR COMMIT/CONTRIBUTION.  Not through the acts of others.
>
> So the answer is you haven't triggered the combination of A+C, ergo you
> have not granted that IP described by that claim.
>
> And once again IANAL, but this all seems really obvious to me simply by
> reading the AL terms.
>
> Bill
>
>
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> official ASF policies and documents.
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