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From "Geir Magnusson Jr." <ge...@apache.org>
Subject Open Source, Patents and "Patent Exhaustion"
Date Wed, 09 Apr 2008 23:27:30 GMT
I'd like to get a clear understanding of the intersection of patents  
and open source software.  I know that when i discuss this subject  
with various members of the Apache community, I get different answers,  
and some that make no sense based on my understanding of patent law  
(which I admit is limited), and feel that I'm confusing what amounts  
to an "ideal vision" versus "pragmatic understanding based on case  
law" (or something) - aka "reality".

I've long ago decided that I'm not very smart, and that I tend to  
learn and communicate better with examples.  So I'd like to see if I  
can resolve my confusion by getting answers to a set of questions  
about a plausible but hypothetical situation.  In order to keep it  
simple, I'd like to just consider the patent grant in the Apache  
License, and leave out for now the grant in the ICLA.

So, let me start by presenting a simple use case to give context.   
This is supposed to be just the standard situation contemplated by  
Section 3 of the Apache License :

"Intel contributes under the Apache License a patented sorting
  algorithm for use in Harmony's garbage collector.  Intel owns
  the patent to the sorting algorithm."

I believe the following are true - corrections welcome :

True Statement 1 : "Users of Apache Harmony have a license from Intel  
for the sorting algorithm"

True Statement 2 : "Intel provides a license for the sorting algorithm  
to users of Apache Harmony, so that users can make, use, sell, offer  
to sell, import and transfer copies of Apache Harmony"  (this may be a  
longer version of Statement 1)

True Statement 3 : "Apache Harmony users have a license to the sorting  
algorithm for all future versions of Apache Harmony - as  
modifications, additions and improvements are made to Apache Harmony,  
all users of Apache Harmony still get a license for the sorting  
algorithm from Intel"

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?

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?

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?

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?)

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?

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?

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?

Thanks in advance.  I'd really appreciate if the questions were  
answered directly with a "yes" or a "no" if possible (with a reason  
provided) and only if not possible, "maybe", with statements  
illustrating why.  If a question needs to be clarified or simplified  
to better facilitate an answer or communicate what is my probable  
intent, please do so and answer, or ask and I will clarify.

Thanks

geir


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