Subject: Re: ECL 2.0 and New Questions!
From: "Chris Travers" <>
Date: Fri, 23 Nov 2007 15:04:37 -0800

On Nov 23, 2007 2:30 PM, David Woolley <> wrote:

> I'm not sure you understand the complexity of the situation here.  The
> licensor of the software has the right to obtain a patent and then grant
> patent licences but that right is constrained by a contract, such that
> they don't have the right to grant royalty free or even RAND licences
> for the software.
> Moreover, at the time they issue the software licence, they don't know
> that the invention is actually subject to the contract, at best because
> the team that is working on the project subject to the contract has not
> told the licensing department that they have also made the same
> invention, or, if US patent law allows this scenario, because that team
> realises, after the software is released, that they can use the
> invention in the software in their project, and as it is invented by the
> same organisation, slap a patent on it and then exclusively licence it
> to their client, within the one year grace period.

If I understand you correctly (IANAL), the concern would be that it
would be harder to argue implicit license due to the explicit license

I.e. if that company licensed the software to me under the MIT license
and then tried to sue me for infringing on their rights through the
use of the software, I would think that it would be fairly
straight-forward to suggest that the MIT license gave me patent as
well as copyright licenses (I believe you can't give me permission to
do something and then later sue me for doing it).

So, if I understand you correctly, you are suggesting that the ECL
could be reasonably interpreted by a court to allow someone to
retroactively negotiate additional patent licenses for a fee.  If so,
wouldn't the MS-RL and the GPL v3 suffer from a similar problem?

Best Wishes,
Chris Travers