[License-discuss] patent rights and the OSD

[Christopher Sean Morrison]

In light of the recent CC0 discussion, I’m refreshing my mind on what rights are provided under patent law, each of the OSD criteria, and any connections between them.

From my reading, a patent gives the holder the right to exclude others from (a) making, (b) using, (c) selling, or (d) importing/exporting their invention.  The OSD clauses refer to “the distribution terms” in rather license- and copyright-agnostic terms, so here’s my basic layman analysis:

1) Exclusion (a) seems not problematic for the OSD as it precludes others outside of licensing.
2) Certainly a problem in the broad sense, but exclusion (b) seems not problematic with the OSD.
3) Exclusion (c) seems to fail OSD clause #1 (Free Redistribution) and possibly #7 (Distribution of license).  
4) Exclusion (d) similarly fails #1 and #7.

So what?  In terms of OSD compliance, there appears to be several issues if a patent exists and one does not grant/hold a royalty-free patent license.  If I have a software patent and license that software under CC0, for example, without any other distribution terms in place, it’s my reading that this would technically be distribution terms that violate OSD #1 and #7.

This creates an interesting situation where “the distribution terms” of some software will depend on whether the distributor holds a patent, not necessarily on the language of their license.  There are, of course, ample examples of licenses that convey conforming patent rights, both implicit and explicitly.

Does anyone disagree that holding a patent and not granting a patent license violates the OSD, perhaps as an out-of-band perspective?  Should the OSD only be measured against a copyright standard, as originally drafted?  Does OSI need to clarify “all bets are off” if there’ s a patent or consider them as part of the distribution terms equally?  What are other people’s thoughts on this?

Cheers!
Sean