Intel's proposed BSD + Patent License

Karsten M. Self kmself at
Mon Nov 5 05:47:06 UTC 2001

on Sun, Nov 04, 2001 at 10:05:23PM -0500, Russell Nelson (nelson at wrote:
> Karsten M. Self writes:
>  > on Fri, Nov 02, 2001 at 05:34:48PM -0500, Russell Nelson (nelson at wrote:
>  > > The BSD+Patent license doesn't restrict use either.  The patent system 
>  > > restricts use.  The BSD+Patent license grants use.
>  > 
>  > The patent license creates an explicit class of works under which the
>  > software is not freely utilizeable.
> No it doesn't.  The patent *system* creates this class of works.

Specious.  You could make the same argument of any copyright license.
Exclusive rights in both cases are retained unless granted...explicitly
or implicitly.  Question for the lawyers:  does, over the life of a
patent, failure to seek enforcement, create a circumstance construable
as an implied license?

The fact is that Intel has chosen to open the door to the room granted
them by 35 USC, only for the specific instance of operating systems.

Lacking a specific patent grant, one is left in a grey zone.  Invoking
quantum physics isn't fully appropriate, but the sitation isn't resolved
until the patent holder decides to enforce and through actions,
establish the parameters of licensing, implicit or explicit.   Intel is
acting in a manner that's harmful to free software by resolving this
grey zone in the form in which they've chosen to do so.

Again, the patent grant, specific to the software, and therefor in my
reading, a part of the software's licensing, applies to a specific class
of works.  This is incompatible with the OSD.



Karsten M. Self <kmself at>
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