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From "Geir Magnusson Jr." <g...@pobox.com>
Subject Re: AL's patent license in the context of derivative works
Date Fri, 04 Apr 2008 00:54:32 GMT

On Apr 3, 2008, at 8:34 PM, Geir Magnusson Jr. wrote:

>
> On Apr 3, 2008, at 7:40 PM, Joe Schaefer wrote:
>>
>> According to the Apache License 2.0, they get a patent
>> license to do with pretty much as they wish.
>>
>
> Thanks for being patient with me :)  I'm starting to feel really  
> stupid since everyone gets this but me.
>
> The AL says (dropping the litigation piece) :
>
> 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, 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.
>
> My simple understanding of this says :
>
>  I get a patent license from each contributor to do a bunch of
>  things with the Work for any patent claims the Contributor can
>  license that are necessarily infringed by their contribution,
>  or the combination of the contribution and the work.

For the sake of discussion :

Why can't I separate the license from the set of claims infringed by  
the Work?

IOW, can I create new software that infringes on the same set of  
patent claims as the Contribution or the combination of the  
Contribution and the Work, and assert that I have a license for those  
claims since I once simply downloaded the Work?

I believe the answer is "no",  because the patent license is actually  
constrained  by section 3 to apply to a set of actions done with the  
Work in question, and not some other work, related or not.

Thus, given that "making new software that infringes on the claims"  
reasonably falls within "doing pretty much doing as I wish" with the  
license for those claims, I don't believe it's the case that i can do  
"pretty much as I wish".

geir


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