[License-discuss] How licenses treat patents

Lawrence Rosen lrosen at rosenlaw.com
Mon May 5 04:01:02 UTC 2014

Simon Phipps wrote in relation to CC0: 

> ... Had they persisted, I believe OSI would have needed to face the issue 

> of how licenses treat patents.


There really aren't too many alternative ways for FOSS licenses to treat patents:


*         The FOSS license does not contain a patent license.

*         There is a patent license for the FOSS work as distributed.

*         There is a patent license for the FOSS work as distributed and its derivative works.

*         There is a patent license for all FOSS works.

*         The patent license is royalty-free and unencumbered for the implementation of a standard.


I'm aware of FOSS-compatible licensing examples of each of these. 


There are also sloppy licenses where at first read the scope of the patent license isn't obvious. For example, the GPLv2 prohibits distribution if a patent encumbrance is actually encountered – but without offering a patent licenses directly.


There are many examples of patent-encumbered software where the copyright owner doesn't own and can't license the patent. This is the problem of third party patents and patent trolls and university professors and US government employees. 


I know of an example of FOSS software where the patent claims are licensed separately (and for a fee) to almost the entire software industry already – but separately from the FOSS copyright license. Certain important codecs are licensed that way.


There are even examples where the copyright owner is willing to grant a patent license for most FOSS applications but excludes certain applications. The Oracle/Sun/Java TCK licensing is an example of that.


Given this wide assortment of alternatives, do you expect OSI to bless any one in particular?


Probably the only grand solution to the "patent problem" is the one proposed by Richard Stallman and lots of others: Prohibit software patents entirely. But that ain't gonna happen in our lifetimes, so I hope OSI doesn't waste its time traveling down that particular long and winding road.




Lawrence Rosen

Rosenlaw & Einschlag ( <http://www.rosenlaw.com/> www.rosenlaw.com) 

3001 King Ranch Road, Ukiah, CA 95482

Cell: 707-478-8932   Fax: 707-485-1243


From: Simon Phipps [mailto:simon at webmink.com] 
Sent: Sunday, May 4, 2014 4:05 PM
To: license-discuss at opensource.org
Cc: Karl Fogel
Subject: Re: [License-discuss] Can OSI take stance that U.S. public domain is open source?


On Sat, May 3, 2014 at 9:13 PM, John Cowan <cowan at mercury.ccil.org <mailto:cowan at mercury.ccil.org> > wrote:

I continue to think that our CC0 decision was wrong insofar as it can
be read as saying that the CC0 license is not an open-source (as opposed
to OSI Certified) license.  There may be reasons not to certify it,
but not to deny that it is open source.


We did not decide against CC0. The discussion was certainly at a low point when Creative Commons withdrew it from the approval process, but that's what happened, not an OSI denial. Had they persisted, I believe OSI would have needed to face the issue of how licenses treat patents.



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