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From Joe Schaefer <joe_schae...@yahoo.com>
Subject Re: Open Source, Patents and "Patent Exhaustion"
Date Fri, 11 Apr 2008 01:25:19 GMT
--- "Geir Magnusson Jr." <geir@pobox.com> wrote:

> On Apr 10, 2008, at 7:48 PM, Joe Schaefer wrote:
> > --- "Geir Magnusson Jr." <geir@pobox.com> wrote:
> >>
> >>
> >> I think the explicit grant as is good.  All I'm
> >> saying is that the
> >> fact you can't use the patent license grant for
> >> "pretty much whatever
> >> you want" doesn't invalidate the work as open
> >> source.
> >
> > When "pretty much whatever you want" stands for
> > the rights conferred by the Apache License 2.0,
> > which includes without limitation the right to
> > make and distribute derivative works, I think
> > it's pretty safe to conclude that even though
> > the patent grant in section 3 is tied to the work,
> > the rest of your rights are not superceded by
> > the limitations inherent in the patent grant
> > language.
> I simply don't agree.   You have no right to the
> patent beyond the  
> patent grant and what US law says and in the end,
> what a court would  
> say, I suppose.
> The right to make and distribute derivative works is
> a right that is  
> interpreted in the context of copyright law, and is
> therefore silent  
> on what happens with any associated patent grants.
> A derivative work isn't the original Work.  It may
> not even infringe  
> on the patents that the original Work infringed.
> I think that once you make a derivative work, you're
> really on your  
> own wrt patent grants associate with the original
> work.

Well I think that depends entirely on the language
in the license.  The MIT license, which grants the
right to "deal in the software without restriction"
is pretty clearly a patent license as well as a
copyright one.

> I have an easy fix to this whole mess.  Modify
> section 3 of the AL to  
> read (my additions in CAPS) :
> 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 OR ANY  
> DERIVATIVE WORKS 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  
> Best of luck.

Interesting, but perhaps unnecessary.  The
question is whether or not section 3 places
limits on the rights conferred in section 2.
Not sure why you needed a questionnaire instead
of just making the statement "it does" outright.

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