Royalty-free Patent Policies for Open Source?

[Lawrence E. Rosen]

>    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.
>
> 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?

No, it doesn't mean you can freely write your own code that used the
same patent.  It means you can use the Licensed Claims "to make, use,
sell and offer for sale the Original Work."  You can also use those
Licensed Claims "to make, use, sell and offer for sale Derivative
Works."  You have no license to use those Licensed Claims to make some
independent work.  

If, speaking theoretically, someone donated OSL-licensed code and W3C
published it as a Recommendation, every implementation that copied that
OSL-licensed code would be licensed under the OSL to practice the
Recommendation.  If, however, an independent implementation of a
published standard does not copy the OSL-licensed code, then W3C would
require the Licensor to also offer a license different from the OSL to
allow such independent implementations.  

Is that the situation you meant to describe?

Actually, the OSL is not a good license to use here as an example,
because the OSL contains a reciprocity provision that goes beyond what
W3C allows.  Let's use the AFL as a better example:

   "under patent claims owned or controlled by the Licensor that
   are embodied in the Original Work as furnished by the Licensor,
   to make, use, sell and offer for sale the Original Work and
   derivative works thereof, subject to the following conditions."

Under the AFL, you have no right to the patent claims to create an
independent work; to do so you must obtain a different license.  

W3C would require a broader license from the Licensor than the AFL or
OSL offer unless the implementation is a copy or Derivative Work of the
Original Work.

/Larry Rosen

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