STWL 1.0, revision 3

Bernhard Fastenrath bfastenrath at
Tue Nov 16 12:24:19 UTC 2004

Robert E. Jones, III wrote:

> Berhhard
> Two big issues with the language you have below:
> The first is enforceability.  While I am not aware of how European 
> courts would view this clause, I can tell you the US courts would more 
> than likely view this as an overreaching clause and find it 
> unenforceable.   Anytime you try to regulate behavior out-side the 
> direct scope of a contract (my favorite law school example is a 
> fictional clause in a car-rental agreement that requires a renter to run 
> a marathon while wearing the rental cars logo), courts take a very hard 
> look at it.  In this case you would be asking people to give up rights 
> that are independent of and completely unrelated to the particular deal 
> at hand.  I think that you would have an almost impossible task in 
> trying to get a US court to go along with this.  About the best you can 
> probably do is narrowly tailor the language to the specific deal  or 
> software (ie, you agree not to enforce it against the licensor or 
> against other users of the specific software being licensed.)

This license may be invalid for private users of the software but most 
patent owners are companies and as a license for a business entity this 
is completly in order. I'm quite sure it's the same in the US.

> The second problem is the last line.  You cannot have a license that 
> runs for a particular period, then is suspended and then pops back into 
> existence.  More than likely, the last sentence would be interpreted as 
> just terminating the license.

Why not? I can attach a limited validity period to a software license
and I can terminate a software license by adding clauses that terminate 
the license. Why should it be invalid to declare the license void and 
then allow it to be reestablished after certain conditions are met?

The main purpose is, of course, to terminate the license. I use the 
paragraph only to make sure the license is not established again. After 
all this license can be established by the user just by downloading the 
software and agreeing with the terms of the software.

Do you think the clause makes it sufficiently clear that the intention 
is to make it impossible to license the software while a patent is valid 
that has been enforced against open source software or open source users 
regarding open source software?


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