Subject: RE: termless copyright and patents
From: "Lawrence Rosen" <lrosen@rosenlaw.com>
Date: Tue, 3 Oct 2006 13:40:10 -0700

Simo wrote:
> I think the implicit patent grant is that if I give you software X on
> which I have patent A and B then I implicitly grant you usage of patent
> A and B with that software.

I think the exhaustion doctrine (i.e., "first sale doctrine") usually takes
care of the situation where a product is sold (or licensed) for a specific
purpose. Necessary patent grants for that purpose are included.

The problem is that "usage" of software often involves the association of
that software with data and commands, or in combination with other software.
There may be other uses besides the intended purpose. I don't have any legal
basis to conclude that implied patent licenses include all of those uses.

I can guess, and as an attorney I can argue. But I can't point to words
which state the intention of the parties because the license is implied.

/Larry


> -----Original Message-----
> From: simo [mailto:s@ssimo.org]
> Sent: Tuesday, October 03, 2006 12:02 PM
> To: lrosen@rosenlaw.com
> Cc: 'Free Software for Business'
> Subject: RE: termless copyright and patents
> 
> On Tue, 2006-10-03 at 10:58 -0700, Lawrence Rosen wrote:
> > > > Also, as Tom points out, there is a difference in legal terminology
> > > > here ([implicit] "license" vs. "covenant not to enforce"), and I
> > > > wonder if that doesn't prevent them from being equivalent in
> important
> > > > ways.
> > >
> > > This is a very good question, but I see no better solution. But it
> make
> > > sense to have a word of too from a Lawyer (Larry ? :) too known if he
> > > thinks the GPLv3 explicit covenant may cover less cases than an
> implicit
> > > one.
> >
> > I have never been able to understand the intended scope of so-called
> > "implicit" patent grants in the GPL or other open source licenses. At
> least
> > some of what people believe about such licenses may be wishful thinking.
> 
> I think the implicit patent grant is that if I give you software X on
> which I have patent A and B then I implicitly grant you usage of patent
> A and B with that software.
> 
> This is what I always thought at least.
> 
> Simo.