non-aggression pacts for patents and the GPL

Lawrence E. Rosen lrosen at
Tue Nov 25 18:28:34 UTC 2003

Hi Will,

I'm not sure why you mentioned paragraph 7 of the GPL, but not the fact that
many other open source licenses ALREADY have even more effective provisions
to prevent patent litigation -- with precisely the result you seek. It may
be that Company X doesn't realize this.

I suggest you look at the following license provisions on the OSI website:

   Mozilla Public License § 8.2 and 8.3.

   Common Public License § 7

   Open Software License and Academic Free License § 10

These are just examples.  Many open source licenses do this.

/Larry Rosen

> -----Original Message-----
> From: will at [mailto:will at] 
> Sent: Monday, November 24, 2003 2:23 PM
> To: license-discuss at
> Subject: non-aggression pacts for patents and the GPL
> All --
> I'm Will Rodger, and I'm director of public policy at the 
> Open Source and Industry Alliance. We're a project of the 
> Computer & Communications Industry Association here in Washington DC.
> I have a question for y'all.
> Paragraph 7 of the GPL talks about patents and their effects 
> on GPL'ed code. Among other things, it says that one should 
> cease distribution if patent litigation becomes an issue:
> -----------------
> "7. If, as a consequence of a court judgment or allegation of 
> patent infringement or for any other reason (not limited to 
> patent issues), conditions are imposed on you (whether by 
> court order, agreement or
> otherwise) that contradict the conditions of this License, 
> they do not excuse you from the conditions of this License. 
> If you cannot distribute so as to satisfy simultaneously your 
> obligations under this License and any other pertinent 
> obligations, then as a consequence you may not distribute the 
> Program at all. For example, if a patent license would not 
> permit royalty-free redistribution of the Program by all 
> those who receive copies directly or indirectly through you, 
> then the only way you could satisfy both it and this License 
> would be to refrain entirely from distribution of the Program."
> -----------
> That said, what would any of you make of what lawyers call 
> reciprocal non-assertion pacts? That is, would it be a good 
> thing if Company X let anyone use its patented, open-source 
> technology on a royalty-free basis _as long as_ that person 
> or group agreed not to sue Company X for patent infringement?
> At first blush, this seems a pragmatic approach to the issue 
> of patents. If open source projects do not themselves amass 
> patent portfolios, then non-assertion agreements would seem 
> to hold them harmless from the patent litigators of Company X.
> Suppose you accepted such an arrangement as an open source developer.
> 1 -- Would this comport with the GPL and open source licenses 
> generally?
> 2 -- Would you take such a deal, assuming the contract was 
> properly drafted and you believed Company X was acting in good faith?
> 3 -- For both questions, if not, why not?
> thanks,
> Will Rodger
> Director Public Policy
> Open Source and Industry Alliance
> --
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