Proposed new OSD item - patent termination

Arnoud Engelfriet galactus at
Sat Apr 9 18:26:11 UTC 2005

Bruce Perens wrote:
> 4. As you can infer from #2 and #3, the line between hardware and 
> software is blurring. Thus, we are getting many purported hardware 
> patents that are actually software patents.

I accept that; I've always maintained that you can't draw a good
line between "hardware" and "software"(*). Hence there's no point
in treating "software patents" as a special case.

Getting back to the original issue: it boils down to what kind 
of consideration an OSI-approved license may ask from a licensee.

It's quite reasonable to ask reciprocity for derivative works. It
also seems reasonable to ask for a non-assert on patents covering the
work, or to include a patent termination clause in case the licensee
sues with such a patent. But I do not think it's reasonable to ask
for a consideration in a totally unrelated area.

To make an analogy, the license could also stipulate that a
licensee from now on shall publish all his works under the GPL
(or another OSI-approved license). Your reasoning seems to apply
equally well to that case. But it has nothing to do with the
work being licensed. 

Of course, the condition of this analogy would run afoul of OSD #9.
And I think the same principle should apply to "other patents",
to use the wording of OSD #9. It's just not reasonable anymore.

(*) Other than what I was taught in Compsci 101: software is
the part you can't kick.
Arnoud Engelfriet, Dutch patent attorney - Speaking only for myself
Patents, copyright and IPR explained for techies:

More information about the License-discuss mailing list