[License-discuss] [Non-DoD Source] patent rights and the OSD

Karan, Cem F CIV USARMY RDECOM ARL (US) cem.f.karan.civ at mail.mil
Tue Mar 7 14:05:16 UTC 2017

I personally think that software that is distributed without a patent license or a waiver of patent claims is not Open Source (this is my opinion, and not a Government position).  It prevents people from freely modifying the code.  That said, I don't have a problem with someone holding a software patent; in some cases, it may actually be beneficial because it prevents someone else from holding the same patent, so it may actually clarify what is being licensed[1].

Cem Karan

[1] I'm not a lawyer, this is not legal advice, find someone that really knows the law to make sure this is correct.

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> From: License-discuss [mailto:license-discuss-bounces at opensource.org] On Behalf Of Christopher Sean Morrison
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> Subject: [Non-DoD Source] [License-discuss] patent rights and the OSD
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> 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
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