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From "Lawrence Rosen (Commented) (JIRA)" <j...@apache.org>
Subject [jira] [Commented] (LEGAL-133) Does an Apache Project with Patents pose legal risk for its users?
Date Thu, 12 Apr 2012 18:49:17 GMT

    [ https://issues.apache.org/jira/browse/LEGAL-133?page=com.atlassian.jira.plugin.system.issuetabpanels:comment-tabpanel&focusedCommentId=13252721#comment-13252721
] 

Lawrence Rosen commented on LEGAL-133:
--------------------------------------

> Is this a patent violation?

This *may* be a patent infringement, depending on the specific patent claims and the functions
actually performed by the forked software. There is no absolute answer to this question in
the absence of specific patent claims. I suggest, though, that if you suspect that patents
exist that Project-X infringes, this is important information for software developers to consider
before contributing to or forking the code.

> Note that there is no list of patents for Project-X maintained anwhere, and Company-B
is not aware of Company-A patents which it may be using in private-fork of Project-X.

This is precisely why I have repeatedly advised here at Apache that our NOTICE file retain
all patent and other notices that might apply to Apache's software. In the absence of that
NOTICE, Company-B is operating in the dark in a treacherous patent minefield. We owe our customers
all the information we possess about potential risks.

> Does an Apache Project with Patents pose legal risk for its users?

Yes. The analysis of that risk is fact-specific, not answerable in general. Some risks can
safely be ignored, others may subject you to patent litigation. 

It bothers me that Apache projects don't inform our users that patents have been asserted.
A recent example of this with some Adobe patents was already answered here previously, and
you might want to refer to Jira LEGAL-120 for a similar issue. For the record, I disagree
with current Apache legal processes concerning potential patent risks. Even IETF, which has
a weak and barely-enforceable patent policy, provides more information about patent encumbrances
to their specifications than we do about our software that implements those specifications.
That is a disservice to our users and contributors, in my opinion.

/Larry
                
> Does an Apache Project with Patents pose legal risk for its users?
> ------------------------------------------------------------------
>
>                 Key: LEGAL-133
>                 URL: https://issues.apache.org/jira/browse/LEGAL-133
>             Project: Legal Discuss
>          Issue Type: Question
>            Reporter: Priyank Rastogi
>
> Company-A contributes code to Project-X under Apache License, and has patents on the
technology contributed.
> This is permitted [e.g. Citrix having patents related to CloudStack].
> Company-B now downloads Project-X, and starts using it.
> Due to business reasons, Company-B forks Project-X, and starts maintaining a private
branch with private changes [which is permissible under Apache License].
> Company-B is using the software commercially.
> Is this a patent violation?
> Note that there is no list of patents for Project-X maintained anywhere, and Company-B
is not aware of Company-A patents which it may be using in private-fork of Project-X.

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