Question about documentation and patents

[Donovan Hawkins]

On Sat, 24 Nov 2007, John Cowan wrote:

> If documentation, as opposed to source code, is released under a
> FLOSS license with a patent grant, would people assume that the license
> covers what is described by the documentation?  IOW, suppose that rather
> than giving you an implementation under the AFL or the Apache or some
> such "modern" permissive license, I just give you under the license a
> description of what the program does.  In that case, would you feel safe
> writing an implementation without regard to what patents I might hold?

My initial reaction was that it would be ok to use the patents, but the 
more I think about it the more that opinion changes.

When applied to software, a patent license clause generally grants such 
patents as are needed in order to exercise the primary software license. 
That means being able to use the program yourself and distribute the 
program to other people (with possible modifications).

Applying the same logic to documentation, what patents are needed in order 
to read the documentation yourself and distribute it to other people? If 
the typesetting, layout, or fonts were patented then the patent license 
should reasonably apply to those since you will be copying them when you 
distribute. But you don't need the patent to the process described by the 
documentation in order to publish the documentation, so that should not be 
covered.

I think you might end up granting a patent license to the process 
described in the documentation whether you intended to or not, but that 
would probably come down to the specific wording of the license being 
used. In the general case though, I would say it should not be expected. 
This is one case where using a well-written documentation license (rather 
than a software license) would hopefully clear up any confusion.

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Donovan Hawkins, PhD                 "The study of physics will always be
Software Engineer                     safer than biology, for while the
hawkins at cephira.com                   hazards of physics drop off as 1/r^2,
http://www.cephira.com                biological ones grow exponentially."
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