Subject: Re: New angle on the patent problem
From: "Karsten M. Self" <kmself@ix.netcom.com>
Date: Mon, 13 Sep 1999 17:46:56 +0000

Jonathan (FSB cc:'d)

shapj@us.ibm.com wrote:
> 
> Karsten:
> 
> There is a great deal of confusion in the Jikes licensing history.  I just went
> over to the site to see what is up.

I found the IBM Public License (IPL) at: 
http://www.research.ibm.com/jikes/license/license3.htm

The IPL was adopted by Jikes on June 17, 1999, as described at
http://www.ibm.com/research/jikes/license

Section 2:

> b.Subject to the terms of this Agreement, each Contributor
> hereby grants Recipient a non-exclusive, worldwide, 
> royalty-free patent license under Licensed Patents to make,
>  use, sell, offer to sell, import and otherwise transfer 
> the Contribution of such Contributor, if any, in source 
> code and object code form. This patent license shall apply
> to the combination of the Contribution and the Program if, 
> at the time the Contribution is added by the Contributor, 
> such addition of the Contribution causes such combination 
> to be covered by the Licensed Patents. The patent license 
> shall not apply to any other combinations which include 
> the Contribution. No hardware per se is licensed hereunder. 

The termination clause now includes a patent-based poison pill:

Section 7:

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

This is a reasonable tit-for-tat, but IMO only has teeth where both
parties hold roughly equivalent patents.  Interestingly, 2(b) rights
(patent grant) is terminated, but not copyright grant (2(a)).  Methinks
the license needs to show more teeth in this regard, and should
terminate entirely in the event of patent litigation against any
licensee or developer.

I spell out in my IWE post
(http://forums.infoworld.com/threads/get.cgi?135009) why I feel a
copyright poison pill is more effective than a patent-based one, though
I have no objections to a patent-based poison pill as well.  Copyright
however is closer to the license issue and a right more usable by the
typical small software developer (individual or company).

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

SAS for Linux: http://www.netcom.com/~kmself/SAS/SAS4Linux.html
Mailing list:  "subscribe sas-linux" to
mailto:majordomo@cranfield.ac.uk    
 10:24am  up 3 days, 14:04,  0 users,  load average: 0.25, 0.30, 0.28