Termination for Patent Action

Lawrence E. Rosen lrosen at rosenlaw.com
Sat Sep 27 19:08:49 UTC 2003

New thread -- was "RE: For Approval: Open Source Software Alliance License"

> John Cowan wrote:
> > The AFL says that if you sue the author of an AFL-licensed piece of 
> > software under a software patent claim (related or not), 
> you lose all 
> > rights to that software.

Arnoud Engelfreit responded:
> Actually it goes much further. If you sue any author of any 
> AFL- licensed software for patent infringement, you lose all rights 
> to *all* AFL-licensed software, as well as all rights to all 
> other software with that same "poison pill" clause. Currently 
> that means you also lose rights to all OSL-licensed software.
> The GPL has its own implicit patent poison pill, which works 
> as you describe above. That's because enforcing a patent 
> right is imposing a "further restriction" in GPL terms.

Actually, the new AFL version 2.0
(http://www.opensource.org/licenses/afl-2.0.php) doesn't contain that mutual
defense clause because some key folks really hated it and refused to use any
license that contained it.  The AFL (and the Open Software License too) now
reads as follows:

   10) Termination for Patent Action. This License shall terminate
   automatically and You may no longer exercise any of the rights
   granted to You by this License as of the date You commence an
   action, including a cross-claim or counterclaim, for patent
   infringement (i) against Licensor with respect to a patent
   applicable to software or (ii) against any entity with respect
   to a patent applicable to the Original Work (but excluding
   combinations of the Original Work with other software or hardware). 

This is very similar to the language in the Mozilla, IBM, Apple, and many
other licenses.

As to whether that clause continues to be objectionable to RMS, he's free to
speak out on that point but, AFAIK, he hasn't.  I haven't explicitly sought
out his opinion after the drawn-out and unpleasant experience I had with him
last time, although I did send a copy of the license to FSF at the same time
as I submitted the license to the OSI board for its approval.

/Larry Rosen

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