Subject: Re: Question on OSD #5
From: "Chris Travers" <chris.travers@gmail.com>
Date: Tue, 27 Nov 2007 18:45:04 -0800

On Nov 27, 2007 6:15 PM, Matthew Flaschen <matthew.flaschen@gatech.edu> wrote:

> > Company B reads Company A's patent application, implements the feature
> > and gets the contribution accepted.  This could furthermore solely be
> > done as an attempt to undermine company A as a competitor.
>
> Or, of course, an attempt to make the software better for both of them.
>
> > Company A cannot sue anyone (even company B) over the essential theft
> > of the patent unless and until they migrate away from the software
> > package X.
>
> I think that's incorrect.  But again, it depends which patent
> retaliation clause we're talking about.
>
> Under IPL, company A can't sue company B for /any/ software patent
> infringement, without losing their own license for other patents in X.
> However, company A can still sue non-Contributors for infringement of
> this, or any other patent.
>
> Under GPLv3, company B still can't sue company A for infringement
> "alleging that any patent claim is infringed by making, using, selling,
> offering for sale, or importing the Program or any portion of it."
>
> However, under GPLv3, company B can still safely sue company A (or
> anyone else) for infringing the patent through activities unrelated to
> the Program.

There is also an interesting question:
If company A sues company B, over the new version of the software
incorporating their patent, do they lose all patent rights given under
the GPL v3 for the prior version?  Or do they only lose patent rights
gained in the new version?

I.e. if Company C contributed their patented technology willingly to a
prior version, can they sue Company A for infringement because Company
A's suit terminated the grant?  Or is does the earlier version's
license grant patents separately?

My first though (when I wrote the example) was that all rights to all
patents in that version. But now I am thinking it might only apply to
the patents in the specific versions and no others.  For example, the
earlier version's license is separate (and therefore grants a separate
patent license), which would actually make the GPL v3's retaliation
clause pretty modest.  I could be wrong though since IANAL.

>
> > We can probably agree that Company B's behavior would be unethical
>
> Well, I think software patents themselves are unethical.  The ethics of
> Company B's actions would depend on the nature of the patent, their
> intentions on adding the feature that violates the patent, and whether
> they respond to initial requests by company A to remove the feature.
>
We can all agree that IT

> > and that the project should probably remove the questionable contributions
> > when they are aware of them.
>
> /If/ company A asks them to.
>
> > So how do we create a patent retaliation
> > clause which does not allow this sort of abuse?
>
> I don't think you can.  I don't think company A would be able sue
> company B over the Program in any circumstances.  Under GPLv3, A can
> still sue B over any software patent, for other programs.

Hmmm..... Rereading....

Provided that Company A does not agree to the offending version's
license, I see no reason they couldn't sue.  Under the GPL they might
be able to do this even if they upgrade but do not distribute the
software (not sure about this, but it seems that mere use of GPL v3
software does *not* grant patent licenses).

After all by agreeing to the GPL one does not agree to refrain from
patent litigations relating to any possible work based on the work one
obtains a license for.

Interestingly, the GPLv3 seems quite balanced here.

Best Wishes,
Chris Travers