license with patent grants appropriate for specifications?

[Ian Jackson]

Lawrence Rosen writes ("RE: license with patent grants appropriate for specifications?"):
> The compromise I try to reach with patent owners in the context of industry
> standards is that 
> (1) patent owners may choose to limit the scope of their patent license
> grants to compliant implementations, and 
> (2) those patent licenses may not restrict anyone from creating and
> distributing non-compliant implementations.

This is disingenuous.

The only way to read those two statements so as not to be directly
contradictory is to infer that point 2 means that the patent licences
fail to licence non-compliant implementations but do not contain an
explicit contractual term forbidding the licensee from producing
non-compliant implementations.  Of course, such a term would
(depending on its terms) very likely be heinously awful.

But what your point 2 _appears_ to say is that the patent fails to
restrict non-derivative works, which is a direct contradiction of
point 1.

So I say that your posting is misleading.

> Point 2 is necessary so as to be consistent with open source freedom to
> create derivative works. Point 1 recognizes that patent owners and standards
> organizations are usually not interested in expressly granting broad patent
> licenses for non-compliant implementations.

These two points are in fact in direct opposition.  The freedom to
create and distribute noncompliant derivative works is one of the
freedoms that define Open Source (or Free) software.  If there is a
patent that prevents this then the software is not Open Source.

Ian.