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From Joe Schaefer <joe_schae...@yahoo.com>
Subject Re: Open Source, Patents and "Patent Exhaustion"
Date Thu, 10 Apr 2008 01:29:23 GMT

--- "Geir Magnusson Jr." <geirm@apache.org> wrote:


> Now my questions. Assume I have a copy of Apache
> Harmony.  And yes,  
> they get loopy towards the end, so be patient.
> 
> Question 1
> ----------
> If I create a new program that incorporates the code
> from Apache  
> Harmony that implements Intel's sorting algorithm
> and I contribute  
> that program to Apache Harmony, do I have a license
> from Intel for the  
> sorting algorithm to make, use, transfer etc my new
> program (either  
> combined or separate from Apache Harmony) under a
> license of my choice?

Yes, so long as your license is compatible with
the terms of the Apache License 2.0.

> 
> Question 2
> ----------
> If I create a new program that incorporates the code
> from Apache  
> Harmony that implements Intel's sorting algorithm
> that I do *NOT*  
> contribute to Apache Harmony, do I have a license
> from Intel for the  
> sorting algorithm to make, use, transfer etc my new
> program under a  
> license of my choice?

Yes, as above.

> 
> Question 3
> ----------
> If I incorporate the code from Apache Harmony that
> implements Intel's  
> sorting algorithm into another open source VM, say
> JamVM (assuming  
> license compatibility), do users of the JamVM have a
> license from  
> Intel for the sorting algorithm to make, use,
> transfer JamVM?

Yes.

> Question 4
> ----------
> If I create a new program that has no code from
> Apache Harmony that  
> implements Intel's sorting algorithm and I do *NOT*
> contribute that  
> code to Apache Harmony, can I depend on Intel's
> patent license for the  
> sorting algorithm so I can make, use, transfer etc
> my new program  
> under a license of my choice?  (IOW, can I indemnify
> my users wrt  
> Intel's sorting algorithm?)

Probably not, because the terms of the Apache License
2.0 don't appear to be applicable.  Roy may disagree
with me here.

> Question 5
> ----------
> If I purchase from BEA a virtual machine that
> implements Intel's  
> sorting algorithm and BEA doesn't offer me
> indemnification, and Intel  
> sues BEA for patent infringement over their sorting
> algorithm, can  
> Intel also sue me for patent infringement for using
> BEA's virtual  
> machine even though I once downloaded a copy of
> Apache Harmony?

Maybe.  The problem here is that the patent license
you received by proxy through BEA is conditional
on Intel not being sued.  Once Intel is sued by BEA,
BEA's rights to the Intel patent disappear, including
the right to resell.  OTOH, once you purchased the
software from BEA, that sale was authorized by Intel
at the time you bought it.  It wouldn't surprise me 
if Intel won in a suit against some BEA user
somewhere,
but it seems a bit unlikely to me.  But then again, I
haven't looked at any actual case law except for a
recent SCOTUS transcript, so it's just my 2 cents.

> Question 6
> ----------
> As a followup to question 5, could I sell BEA my
> patent license for  
> Intel's algorithm to use in their defense in Intel's
> patent suit?

No, because your right to offer a patent license
doesn't go beyond the terms in the Apache License 2.0.
After all, some people say the same thing about the
GPL- that if you violate it once, you can always 
grab a new license from somewhere else.  That's not
likely to work for the GPL, so I don't think that
argument works here either.

> Question 7
> ----------
> For the situation in question 5, assume I haven't
> downloaded Apache  
> Harmony.  Once I'm notified of Intel's suit against
> me, can I claim I  
> ceased infringing the sorting algorithm patent by
> downloading the  
> Apache Harmony tarball?

Doesn't hurt to try ;-).



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