Subject: Re: New angle on the patent problem
From: "Karsten M. Self" <kmself@ix.netcom.com>
Date: Fri, 24 Sep 1999 19:35:19 -0700

On a tip (thanks, tipster), I looked up the patent non-aggression
language of the IBM Public License, which was, I'd been told, somewhat
stronger than the language I'd proposed in my patent poison pill on two
counts:

 - It addresses actions against _any contributor_ -- whether for the 
   covered program or other works -- involving infringement of 
   patents in software.

 - It doesn't have a cooling-off period -- the language I'd worked 
   from suggested a 30 day prospective and 60 day maximum interval 
   in which rights granted by license would lapse, predicated on 
   notice.  I'd somewhat informally suggested this in the language
   I propose.  The IBM license dispenses with this formality.

http://www.research.ibm.com/jikes/license/license3.htm

> 7. GENERAL 
> 
> If Recipient institutes patent litigation against a Contributor with 
> respect to a patent applicable to software (including a cross-claim 
> or counterclaim in a lawsuit), 

This is the broad scope -- *any* action against *any* _contributor_ for
a patent applicable to software -- this reads to me as actions whether
or not the software is the covered program or not.  This is broad.  I
like it.

> then any patent licenses granted by 
> that Contributor to such Recipient under this Agreement shall terminate 
> as of the date such litigation is filed. 

No waiting period, but termination limited to _patent_ licenses of the
party being litigated against.  No termination of copyright grant,
apparently.  This sentence then establishes a quid pro quo arrangement
for licensing of patents (but not patent-for-copyright), but IMO highly
favors the chap with the larger briefcase.  It's good, but I'd also like
to see copyright license for the portion of the work (or all of the work
if it's held to be joint authorship) terminated as well.  Hmmm.... 
Perhaps it's the issue of identifying which parts of the work are
contributed by which contributors, or the spectre of having all of a
held-in-joint work deemed unlicensed, which stopped IBM here.  Or maybe
they just missed this.

> In addition, if Recipient 
> institutes patent litigation against any entity (including a 
> cross-claim or counterclaim in a lawsuit) alleging that the Program 
> itself (excluding combinations of the Program with other software or 
> hardware) infringes such Recipient's patent(s), then such Recipient's 
> rights granted under Section 2(b) shall terminate as of the date such 
> litigation is filed. 

Here we're talking about actions affecting the covered program itself. 
In this case, 2(b) rights (again, patent only, but not copyright) are
terminated.

The sentence following may or may not effectively terminate the license
once the above has been enacted, but I find it curious that the
termination of rights is given _only_ in terms of patent rights.  Again,
I'd like to see 2(1) rights (copyright license) terminated as well.  I
don't know my contract law well enough (yet)....

> All Recipient's rights under this Agreement shall terminate if it 
> fails to comply with any of the material terms or conditions of 
> this Agreement and does not cure such failure in a reasonable 
> period of time after becoming aware of such noncompliance. 


-- 
Karsten M. Self (kmself@ix.netcom.com)
    What part of "Gestalt" don't you understand?

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