license with patent grants appropriate for specifications?

[Bob Scheifler]

> That license is associated with software to which the license is 
> attached to.  If the software is freely available (per OSD #1), and its 
> license complies with all of the OSD terms, the license and the 
> software governed by that license is "OSI Open Source".
> 
> If someone decided to release software under the BSD license but demand 
> per-user royalties because they claim their software needs a patent 
> license, the fact that the BSD license is OSI-approved does not suffice 
> to make their software open, nor would I be willing describe that 
> software as "OSI Open Source".

Thanks. From this I realized I was focused on whether the license itself
conformed to the OSD, whereas I take it your original comment was
focused on a software instance (with associated license). The license
might conform, but the software might not.

OSD #1, like #3, also refers only to the open source license itself,
not to the existence or non-existence of separate patent-only licenses
(licenses for the patents themselves, not for the specific software).
Is it commonly understood to have broader scope? If so, what is that
broader scope? Does it only cover known patent infringements, and only
patents held by the software licensors? Can a given software instance
be open source at one instant and cease to be in the next instant,
when a 1st or 3rd party patent license becomes known?

- Bob