Royalty-free Patent Policies for Open Source?

[Ernest Prabhakar]

Hi Larry,

You wrote:
> The patent grants in most open source licenses are fully compatible 
> with
> the W3C patent policy.  The patent grants in the OSL and AFL are *not*
> tied to specific implementations and are broader than the W3C patent 
> grant.

I understand they may be compatible, but I'm not clear how they 
guarantee compliance.

Can you help me understand what you mean by that?  When I see:

>    2) Grant of Patent License. Licensor hereby grants
>    You a world-wide, royalty-free, non-exclusive, perpetual,
>    non-sublicenseable license, under patent claims owned or
>    controlled by the Licensor that are embodied in the Original
>    Work as furnished by the Licensor ("Licensed Claims") to make,
>    use, sell and offer for sale the Original Work.  Licensor
>    hereby grants You a world-wide, royalty-free, non-exclusive,
>    perpetual, non-sublicenseable license under the Licensed Claims
>    to make, use, sell and offer for sale Derivative Works.

I assume that means a "Derivative Works" is covered by the patent 
grant, but an Independent Work, with similar functionality, would not 
be.

That is, just because (say) IBM released a piece of source code covered 
by the OSL which implemented a patented algorithm in, does that mean I 
(in a commercial application) could freely write my own code that used 
that same patent?  If not, how does that automatically satisfy the W3C 
criteria?

-- Ernie P.

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