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From <gary.br...@bt.com>
Subject RE: Patent grants in Apache
Date Thu, 11 Mar 2010 12:26:45 GMT
Many thanks for the replies.
The situation is, we have code (actually wsdl and xsd interface code, but this shouldn't matter)
that was co-developed and released under Apache 2.0 a while back. One of our co-developers
created a patent covering the concept reflected in the code around the time (let's not worry
if the patent came before or after the code as the intentions are friendly) and wants to make
the patent and all the claims free for all (as a defensive mechanism for the code and to publicise
their thought-leadership).
In the NOTICE file we already have the appropriate copyright and attribution statements. I
was thinking we could also use the NOTICE file to identify the patent and co-developer. Legally,
this attribution might not be needed (e.g. by default, our co-developer's patent may have
been granted by the act of releasing the code under Apache in the first place - i can't confirm
this) but it would be a nice touch.
Larry, I'll forward this to our co-developer.


From: Lawrence Rosen [mailto:lrosen@rosenlaw.com]
Sent: Wed 10/03/2010 20:13
To: legal-discuss@apache.org
Subject: RE: Patent grants in Apache

> Le 10-mars-10 à 12:37, XXXXXXXXX a écrit
> :
> > Is there a mechanism to identify a patent to be granted for free,
> > etc to works licenced under Apache 2.0?

The Apache License 2.0 associates patent grants with specific contributions
of software code. For that reason, it is an inappropriate license for
someone wanting to give ASF a patent grant alone.

If you want a patent non-assert (equivalent to a license, for our purposes)
to allow your patent claims to be incorporated into any work licensed under
the Apache License, I'd be willing to work with your lawyers to draft that.

But there is a potential problem with such a patent grant: Patent claims are
related to functionality; they do not necessarily follow the boundaries of
specific software code or the Apache licenses that apply to *that code*.
Depending upon how you intend your non-assert to work, it would not
necessarily extend to a downstream company that incorporates the Apache work
into a larger (or derivative) proprietary work. Are your patent claims free
for use in such larger works?

Some companies, including one I represent separately from my relationship
with ASF, have compromised that issue with a "Free for open source, everyone
else needs a license" patent licensing model. I'll be glad to explain that
model privately to anyone who asks me privately. That kind of patent license
is not yet approved for ASF projects, however, and so you'd be giving
something to ASF that ASF won't necessarily accept.

I am also working with the Open Web Foundation to create patent non-asserts
that apply to software industry standards. These provide royalty-free patent
grants for software that implements certain Specifications. I bet you could
modify such a non-assert to apply to Apache Software Foundation software as
a whole.


bcc: OWF Legal-Drafting Committee

Lawrence Rosen
Rosenlaw & Einschlag, a technology law firm (www.rosenlaw.com)
3001 King Ranch Road, Ukiah, CA 95482
Office: 707-485-1242    Cell: 707-478-8932
Apache Software Foundation, member and counsel (www.apache.org)
Open Web Foundation, board member (www.openwebfoundation.org)

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