Subject: RE: MPL section 2.2, and patent grants on derivative works
From: "Lawrence E. Rosen" <lrosen@rosenlaw.com>
Date: Fri, 22 Nov 2002 11:39:26 -0800

Because of the kind of patent situation described in Brian's original
email and in the response below, I wanted to make the OSL more precise
than the MPL.  The OSL defines "Licensed Claims" in terms of the
Original Work:

   "...patent claims owned or controlled by the Licensor that are
   embodied in the Original Work as furnished by the Licensor...."

Those, and only those, Licensed Claims can be practiced in Derivative
Works.  See the OSL, section 2.  In the spirit of the open source
definition, authors of derivative works are expressly licensed under the
OSL to create improved embodiments of *those* Licensed Claims.  

This response, of course, doesn't help interpret MPL section 2.2.

/Larry Rosen

> -----Original Message-----
> From: John Cowan [mailto:jcowan@reutershealth.com] 
> Sent: Friday, November 22, 2002 10:16 AM
> To: "Ravicher, Daniel (x2826)"
> Cc: 'brian@collab.net'; 'license-discuss@opensource.org'
> Subject: Re: MPL section 2.2, and patent grants on derivative works
> 
> 
> "Ravicher, Daniel (x2826)" scripsit:
> 
> > This brings up issue (a), in
> > that if Developer, owner of patent claims covering A and B, 
> modifies 
> > and distributes the software to cover A, then Developer has 
> granted, 
> > under the OSL, a license to practice A with respect to the 
> software as 
> > distributed by Developer or any derivative work thereof.  What 
> > Developer has most likely not done is grant a license to 
> practice B in 
> > anything.  Therefore, a Third Party modifying the 
> Developer's version 
> > of the software to now practice A and B, is likely not 
> infringing the 
> > A claims, but is most probably infringing the B claims.
> > 
> > So, to cover that situation, a license could hypothetically define 
> > Licensed Claims as "patent claims owned or controlled by 
> the Licensor 
> > that are embodied in the Original Work as furnished by the 
> Licensor or 
> > any Derivative Work made in compliance with this license."
> 
> That would make the Developer's patents worthless, one and 
> all.  For an unscrupulous person wishing to practice 
> absolutely unrelated patent B would simply have to add an 
> utterly irrelevant module to the licensed software that would 
> otherwise infringe B and then claim a license from the 
> Developer. And the same for patent C, D, E, ...
> 
> I should add that I think software patents are stoopid.  But 
> it's one thing to ask companies to give away patent rights 
> needed to use the program they are also giving away, and 
> quite another to ask them to implicitly surrender all their 
> patent rights, software-related or not.
> 
> (IANAL, TINLA)
> 
> -- 
> What is the sound of Perl?  Is it not the       John Cowan
> sound of a [Ww]all that people have stopped     
> jcowan@reutershealth.com
> banging their head against?  --Larry            
> http://www.ccil.org/~cowan
> --
> license-discuss archive is at 
> http://crynwr.com/cgi-bin/ezmlm-cgi?3
> 

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