Intel's proposed BSD + Patent License

Chloe Hoffman chloehoffman at
Fri Nov 2 15:22:52 UTC 2001

This is not legal advice. No lawyer-client relationship is established.
Speaking only for myself. etc. etc.

----- Original Message -----
From: "Stamnes, Michelle" <michelle.stamnes at>
To: <license-discuss at>
Sent: Wednesday, October 31, 2001 8:31 PM
Subject: Response to comments on Intel's proposed BSD+Patent license

>There seem to be a number of comments on the BSD+ Patent license we have
>proposed that claim that the license is not "open" because it only
>a specific product; i.e., Linux.
>First, this is not true.  The patent license that is extended is for ANY
>that is licensed under the GPL.  It may be Linux or any other OS that is
>licensed under GPL.

I think the concern was that the license that was extended was limited to a 
certain field - operating systems under the GPL - and thereby not in 
compliance with the OSD Guidelines by excluding other products and/or other 
licenses. From what I can tell, the OSD language is not limited to licenses 
of specific rights such as copyright. Whether in application it is I am not 

>Second, and far more fundamental, all of the threads seem to agree:
>1. BSD is a copyright only license.
>2. BSD grants NO rights to patents.
>3. BSD is an open license.

I am not sure if I can absolutely agree with statements 1) and 2). The
license grants in the BSD make no reference to copyright and so expressly or 
impliedly may include limited patent rights to the extent needed to allow 
the licensee to perform the grants in the BSD license. Indeed, the express 
patent license grant may negate that the basic BSD express or implied patent 
license grant. So, a concern might be that the licensee may be getting less 
than what the original BSD provided and that less doesn't meet the terms or 
the spirit of the OSD (see above).

>It is not logical to say that a license that grants MORE rights than the
>is not "open".  If you use the software in an OS licensed under GPL, you
>also get a patent license on the use of that software.  For the sake of
>example, let's assume that instead of granting the additional value of a
>patent license from Intel, the proposed license said "If you use the
>software in an OS that is licensed under the GPL, Intel will pay you
>The license merely provides an incentive for a particular use, but does
>prohibit other uses.  Now, change the value to being a patent license.
>does not change the fact that there is additional value; it is just value
>a different form. How is that not an open license?
>Finally, under the proposed license, you can use the software in Solaris
>any other proprietary OS or in any other piece of software (in addition to
>the GPL based OS's).  You just don't have a patent license; so you are no
>worse off than with the BSD license.

I am not sure a licensee is no worse off. In the original BSD, the licensee 
may have an express license to do what he/she needs. However, even if 
patents are found not be within the express license, the licensee may have 
an implied patent license or may rely on other defenses (e.g. experimental 
use, de minimis, etc.). And, in this case, an express patent license 
possibly negates some or all of those possibilities in a manner that does 
not offer all the rights required by the OSD.

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