[License-discuss] Proposal of new new open-source license for graphics (TERO-GL-1.0)

Wed Nov 5 12:16:35 UTC 2025

Thank you very much, Bruce Perens, McCoy Smith and Josh Berkus for taking the time to review and comment on our proposed license. We greatly appreciate it.

It is correct that the proposed license, like Clear BSD, for example, explicitly does not grant a patent license, whereas many other OSI approved open-source licenses remain silent on the issue. Further, some OSI-approved licenses contain similar, but of course not identical, restrictions on or exclusions from the licenses to various types of IP, e.g., RPL-1.5, which states the following in Clause 5.0:

“5.0 Exclusions From License Grant. Nothing in this License shall be deemed to grant any rights to trademarks, copyrights, patents, trade secrets or any other intellectual property of Licensor or any Contributor except as expressly stated herein. Except as expressly stated in Sections 3 and 4, no other patent rights, express or implied, are granted herein. Your Extensions may require additional patent licenses from Licensor or Contributors which each may grant in its sole discretion. No right is granted to the trademarks of Licensor or any Contributor even if such marks are included in the Licensed Software. Nothing in this License shall be interpreted to prohibit Licensor from licensing under different terms from this License any code that Licensor otherwise would have a right to license”

As Bruce points out, if the subject of patents is not regulated in the license text, it will have to be determined under applicable law, which may or may not lead to a patent license being considered granted as well, e.g., under the common law principle of estoppel and/or as an implied license by virtue of contract interpretation, particularly, in civil law jurisdictions, the courts of which are probably, in general, less likely to consider a(n implied) license to have been granted than the courts of common law jurisdictions. Lothar Determann’s background in German (civil) law could also explain why he arrives at a different conclusion compared to the other experts Bruce has spoken to about this. In any event, not explicitly regulating the patent license leads to significant uncertainty for the licensors as well as for the users, especially seeing as the license may be subject to the laws of differing jurisdictions by virtue of Clause 8 “Governing Law and Venue”, which calls for the laws of the licensor’s “home” jurisdiction to govern and subjects conflicts to the courts of this jurisdiction as well.

Seeing as Teradyne Robotics A/S’ domicile is Denmark, with respect to the material that we license under the proposed license, the license would be subject to Danish law and, under Danish law, it is unlikely that the proposed license would be considered to include the grant of an implied patent license, i.e., in the absence of explicit regulation.

Consequently, we believe it is better explicitly not to grant a patent license than to leave the matter open even if it would likely lead to the same result – at least in our particular case

Best Regards

Morten Fruelund
IPR Manager

Energivej 51
5260 Odense S
Denmark
Cell: +45 28 93 03 22
morten.fruelund at teradyne-robotics.com<mailto:morten.fruelund at teradyne-robotics.com>

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________________________________
From: Bruce Perens <bruce at perens.com>
Sent: Monday, November 3, 2025 23:57
To: license-discuss at lists.opensource.org <license-discuss at lists.opensource.org>
Cc: Morten Fruelund <morten.fruelund at teradyne-robotics.com>
Subject: Re: [License-discuss] Proposal of new new open-source license for graphics (TERO-GL-1.0)

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Josh, I don't think you're taking  estoppel doctrine into account.

While BSD, for example, does not include an explicit patent grant, there are many qualified people who believe it has an implicit one through the doctrine of estoppel. I think Lotar Determann (Berkeley Law professor, legal textbook author, of counsel at Baker and McKenzie, and my sometime co-author) is the highest status attorney to say no (to me), a lot of other attorneys I've talked to say yes. IMO this could be likely to be resolved in a long and expensive litigation, which would be great for the people who want certainty but a pyrric victory for the plaintiff and defendant.

Bruce Perens K6BP

On Mon, Nov 3, 2025, 14:38 Josh Berkus <josh at berkus.org<mailto:josh at berkus.org>> wrote:
On 11/3/25 1:01 AM, Morten Fruelund wrote:
> The license text does not contain any restrictions with regard to fields
> of endeavor, and it does not distinguish between virtual and physical
> use or the purpose of the use. In order to achieve the goal, you
> mention, we simply opted to only grant a copyright license to the
> licensed material, and not include, e.g., a patent license like many
> other open-source licenses also do not do.

That's an interesting approach, a big hedging on the spirit of OSS, but
allowable (in my individual opinion) as long as you don't explicitly
deny patent rights.  When you have updated your text from other
commentary, go ahead and submit it to license-review and we'll delve
into the actual text.

--
Josh Berkus

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