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From "Sam Ruby" <ru...@intertwingly.net>
Subject Re: Open Source, Patents and "Patent Exhaustion"
Date Thu, 10 Apr 2008 09:25:07 GMT
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.  And a simple name change would not affect that
right.  To maintain otherwise would cause licensees which need to
comply with section 6 ("Trademarks") of the Apache License a bit of a
dilemma.  To say nothing of projects like Apache APR and Apache
Commons which contain code originally contributed to another project.

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.  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.  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.

- Sam Ruby

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