[License-discuss] FRAND and licensing patents under OWFa 1.0
lrosen at rosenlaw.com
Mon Aug 31 23:42:46 UTC 2020
To patent owners who support open source software:
In the UK patent decision I recently sent you, the court wrote the following
about "essential claims" that are licensed under "fair, reasonable and
non-discriminatory" terms (e.g., FRAND):
A member of ETSI is obliged to use its reasonable endeavours to inform ETSI
in a timely manner of Essential IPRs during the development of a standard or
technical specification. If a member submits a technical proposal for a
standard or technical specification it is obliged to inform ETSI of its IPRs
which might be essential (clause 4.1).
The Open Web Foundation instead proposed an alternative to this definition
of "essential claims". In Open Web Foundation Agreement 1.0
it defines two alternative terms, and dictates that such "Granted Claims"
are "Permitted" (are irrevocably licensed) for all implementations of the
standard, including open source software:
3.1.1. The Promise. I, on behalf of myself and my successors in interest
and assigns, irrevocably promise not to assert my Granted Claims against you
for your Permitted Uses, subject to the terms and conditions of Section 3.1.
Section 3.1 of OWFa 1.0 promises a fair, reasonable, and non-discriminatory
license (e.g., more equitable than FRAND) for all implementers of that
standard - with patent reciprocation similar to copyleft as its tradeoff
benefit. This is preferable to essential claims promises and it avoids all
the complex and expensive litigation exemplified by the UK matter.
8.4. Granted Claims. "Granted Claims" are those patent claims that I own
or control, including those patent claims I acquire or control after the
Date below, that are infringed by Permitted Uses. Granted Claims include
only those patent claims that are infringed by the implementation of any
portions of the Specification where the Specification describes the
functionality causing the infringement in detail and does not merely
reference the functionality causing the infringement.
8.6. Permitted Uses. "Permitted Uses" means making, using, selling,
offering for sale, importing or distributing any implementation of the
Specification 1) only to the extent it implements the Specification and 2)
so long as all required portions of the Specification are implemented.
Permitted Uses do not extend to any portion of an implementation that is not
included in the Specification.
If you have patents, please consider licensing them using OWFa 1.0 instead
of a burdensome and largely useless essential claims license such as the one
that the UK court took 59 pages to litigate.
3001 King Ranch Rd., Ukiah, CA 95482
lrosen at rosenlaw.com <mailto:lrosen at rosenlaw.com>
LinkedIn: Lawrence Rosen
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