ECL 2.0 and New Questions!

[Chris Travers]

On Nov 23, 2007 12:50 AM, David Woolley <forums at david-woolley.me.uk> wrote:
> Tzeng, Nigel H. wrote:
>
> > "Any patent license granted hereby with respect to contributions by an
> > individual employed by an institution or organization is limited to
> > patent claims where the individual that is the author of the Work is
> > also the inventor of the patent claims licensed, and where the
> > organization or institution has the right to grant such license under
> > applicable grant and research funding agreements."
>
> Whether or not that technically complies with the OSD, my view is that
> such a licence is of no more value to the community than a look but do
> not touch proprietary licence.  Specifically, I think it would be wrong
> to use it for open source software if there were any doubt that the
> organisation had the right to grant the licence.

I would ask what licenses avoid these issues.  I.e. if an organization
does not have the right to grant the patent, wouldn't that invalidate
the patent license anyway?  IANAL, and I could be missing something.
Even the GPL v3 only applies exceptions to this in the case of
distribution relying on a third party explicit patent license (implied
licenses don't count!), so short of the Microsoft/Novell deal, it is
hard to see how anyone could inadvertently license their patents.

However, this would seem to allow for issues where a patent could be
assigned to a contributor (who is therefore not the inventor), and a
license is then charged.  There, though IANAL, I would think that an
implicit license might exist.

I think, however, that this touches on problems for patents in the IT
sector-- i.e. you have systems (hardware or software) with lots of
small components each of which could possibly be subject to a patent
so the risk of liability is high an almost impossible to mitigate.  I
seriously doubt that it is ever feasible to do a comprehensive patent
search to ensure that there are absolutely *no* possible patent
infringement in any non-trivial system.  Short of publishing
disclosures of the software a full patent term prior to releasing open
source, I don't see any way to fully eliminate this risk.  (This
applies to patents which are to be filed within a year, but it also
applies to patents which have been filed for and approved.)

The solution here unfortunately is patent reform...

Best Wishes,
Chris Travers