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From "Geir Magnusson Jr." <g...@pobox.com>
Subject Re: Open Source, Patents and "Patent Exhaustion"
Date Fri, 11 Apr 2008 04:05:22 GMT

On Apr 10, 2008, at 11:43 PM, Jeffrey Thompson wrote:
>
> "Lawrence Rosen" <lrosen@rosenlaw.com> wrote on 04/10/2008 11:00:02  
> PM:
>
>>>> 4. Our licensees and their customers receive a perpetual license  
>>>> [as
> I
>>>> understand the Apache License] to those Patent Claims only for
>>>> software that
>>>> ASF actually distributes (including Harmony, of course, in our
>>>> example), and
>>>> to DERIVATIVE WORKS of that software, regardless of who creates  
>>>> those
>>>> DERIVATIVE WORKS.
>>>
>>> Why?
>>
>> Because that's what we give people by the Apache License 2.0, isn't  
>> it?
> We
>> don't give away anything other than through AL 2.0? Perhaps I'm  
>> wrong....
>> I've never heard of ASF giving away a patent license separate from
> specific
>> software. But what we do give with our software includes the right  
>> for
>> anyone to create DERIVATIVE WORKS of that software, including any
> necessary
>> patent licenses that we are able to pass on.
>>
>
> I think Geir's point is that the scope of the patent license is as  
> follows:
>
> "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."
>
> Where do you read "and all Derivative Works thereof"?  So, I don't  
> think we
> can assume that the copyright grant and the patent grant are  
> necessarily
> coextensive.

Yes

>
>
> The good news is that "Work" is very broadly defined.  Basically,  
> anything
> distributed under the Apache License, so the result is that except for
> highly hypothetical edge cases, the license does exactly what I think
> Apache intends it to do.  The license basically follows the code and  
> any
> Work that it ends up in is licensed.  (Don't jump on me, I know I'm
> skipping steps in the analysis.)

Can you provide the steps for those of us that are slow?  The defn of  
"Work" in AL2 says :

   "Work" shall mean the work of authorship, whether in Source or
   Object form, made available under the License, as indicated by
   a copyright notice that is included in or attached to the work
   (an example is provided in the Appendix below).

I read that definition to mean that the Work is a specific work of  
authorship (the first "the" gives me the hint) and not any work of  
authorship made available under the License.

Further, the patent grant says that you get a license

"... 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 submitted."

Now, I can find a few nits to pick here with using this for my  
argument, such as noting the intention was that this phrase only  
defines WHICH patent claims are covered, but it's clear that there is  
a Work, it's a single work - not any work -  and I can at least infer  
it's the work of authorship to which the Contribution was submitted  
rather than some other work.


>
> Where you get a potential divergence is in hypothetical cases where  
> people
> are trying to game the system, taking a minimum amount of code  
> solely for
> the purpose of getting access to the patent grant, but not taking  
> anything
> closely approximating the intended "Work", not licensing the result  
> back
> under the Apache license, etc.  While I appreciate Apache's interest  
> in
> making sure that everyone can use its code, I don't think that the  
> team
> should be worrying too much about unrealistic hypotheticals.
>
> So, does anyone have a likely use case where this would really be an  
> issue?

Yes - any derivative work.  I still think that the scope of the patent  
grant is constrained to the specific Work to which the Contribution  
was made.

(as I don't understand your argument that the patent grant applies to  
any apache licensed software)

Thanks

geir


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