Intel's proposed BSD + Patent License

Chloe Hoffman chloehoffman at
Wed Oct 31 17:33:06 UTC 2001

This is not legal advice. No client-attorney relationship is established. 
Speaking solely for myself. etc etc

----- Original Message -----
From: "Russell Nelson" <nelson at>
To: "John Cowan" <jcowan at>
Cc: <license-discuss at>; "Kolb, Doug" <doug.kolb at>;
"Stamnes, Michelle" <michelle.stamnes at>; "Simon, David"
<david.simon at>
Sent: Tuesday, October 30, 2001 4:15 PM
Subject: Re: Intel's proposed BSD + Patent License

>John Cowan writes:
>  > Russell Nelson wrote:
>  >


>Essentially, we are all of us completely and totally screwed by the
>patent system.  If I invent something that you have put into your
>(unpublished -- at least as far as the patent system is concerned)
>code for decades, and patent it, I 0WN J00.  Doesn't matter if you're
>IBM and I'm Joe Blow, or vice-versa even.

This statement can't be categorically made and misses nuances. For example, 
in probably every country in the world, there are prior user rights of some 
form i.e. someone using a patented invention before application for that 
invention can continue to use that invention.Unfortunately in the U.S. they 
are very narrow rights but in other countries they are quite broad. Further, 
prior use and prior invention can be a bar to or invalidate a patent in the 
U.S. and elsewhere - the devil is in the details.

>  > Criterion 8 (License Must Not Be Specific To A Product) is violated,
>  > in substance if not to the letter; this license is in effect specific
>  > to Linux.
>On the other hand, if they left that patent license off, we would
>certify it.  However, you would have less freedom to use such patented
>software because you don't have a license.

I think you are assuming that the BSD grant does not include rights to
patents. From what I recall, the BSD makes no reference to specific rights, 
whether copyright, patent or anything else for that matter (except it 
requires the inclusion of the copyright notice).

>Patents suck THIIIIIIIIIIIIIIIIIIIIIIIIS much (picture me opening my
>hands above my head to show you how bad patents are).  In essence,
>every open source license which does not include a patent grant is
>just so much hot air.  About the only thing we can reasonably do is be
>thankful that any patent rights are included, and approve the license
>based on the copyright permissions granted.  Note that the Intel
>BSD+Patent License does not make copying dependent upon patent
>noninfringement.  The patent grant is a separate term.
>And what about jurisdictions?  Jurisdiction is even more significant
>in the patent field than in the copyright field.  At least copyright
>lawyers have the Berne Convention.  So in a jurisdiction where
>software cannot be patented, the patent grant is meaningless.
>-russ nelson <sig at>
>Crynwr sells support for free software  | PGPok | Why are we still
>521 Pleasant Valley Rd. | +1 315 268 1925 voice | the war on drugs when
>Potsdam, NY 13676-3213  | +1 315 268 9201 FAX   | is a real war to fight?
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