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From "Geir Magnusson Jr." <g...@pobox.com>
Subject Re: Open Source, Patents and "Patent Exhaustion"
Date Thu, 10 Apr 2008 09:44:32 GMT

On Apr 10, 2008, at 5:25 AM, Sam Ruby wrote:
> On Wed, Apr 9, 2008 at 11:34 PM, Henri Yandell <bayard@apache.org>  
> wrote:
>>
>> We have the interesting case here that we can't start a Dischord
>> project as a Harmony clone and get the patent
>
> I would think that a bit-for-bit copy made available under the same
> license or even a more restrictive license WOULD retain the rights to
> implement the patent.

I agree, for a tested impl of a JCP specification (and an Apache  
project).

[SNIP]

>
> I don't think we should treat contributions as targeted donations.
> Instead we should feel free to copy code wholesale from project to
> project within the ASF.

... at the risk of infringement if the contributor didn't sign the  
ICLA ?  Because I think that's the state of the world.


>  The more interesting question is: what
> changes may be made without losing the license to the patent, even
> within the scope of the original project?  That's a question where you
> quickly find yourself in Jeff's "somewhere between .05 and .95."
> territory.

I don't think so.  I think that if the changes are made in the  
project, then the patent license persists, as that remains the Work  
which defines the scope of the patent license.


>  And, in any case, once one is notified that a modified
> version of the original source no longer retains the "essence" of the
> original contribution, I would think that reverting the relevant
> changes and finding another way to implement those changes that does
> not involve the portions of code in the original contribution would
> generally (again, "somewhere between .05 and .95") be sufficient
> remediation.

I'm not quite sure about the situation you are suggesting, but if it's  
a situation like section 2, then I believe that your understanding of  
the patent license grant in the AL is one that is limited in scope as  
to apply to the Work to which it was contributed, rather than a  
license that is transferable to any software that the recipient  
chooses to create or use.

Otherwise, such remediation would be unnecessary.

geir


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