<html xmlns:v="urn:schemas-microsoft-com:vml" xmlns:o="urn:schemas-microsoft-com:office:office" xmlns:w="urn:schemas-microsoft-com:office:word" xmlns:m="http://schemas.microsoft.com/office/2004/12/omml" xmlns="http://www.w3.org/TR/REC-html40">
<head>
<meta http-equiv="Content-Type" content="text/html; charset=us-ascii">
<meta name="Generator" content="Microsoft Word 15 (filtered medium)">
<style><!--
/* Font Definitions */
@font-face
{font-family:"Cambria Math";
panose-1:2 4 5 3 5 4 6 3 2 4;}
@font-face
{font-family:Aptos;}
/* Style Definitions */
p.MsoNormal, li.MsoNormal, div.MsoNormal
{margin:0in;
font-size:11.0pt;
font-family:"Aptos",sans-serif;
mso-ligatures:standardcontextual;}
span.EmailStyle17
{mso-style-type:personal-compose;
font-family:"Aptos",sans-serif;
color:windowtext;}
.MsoChpDefault
{mso-style-type:export-only;
font-size:11.0pt;}
@page WordSection1
{size:8.5in 11.0in;
margin:1.0in 1.0in 1.0in 1.0in;}
div.WordSection1
{page:WordSection1;}
--></style><!--[if gte mso 9]><xml>
<o:shapedefaults v:ext="edit" spidmax="1026" />
</xml><![endif]--><!--[if gte mso 9]><xml>
<o:shapelayout v:ext="edit">
<o:idmap v:ext="edit" data="1" />
</o:shapelayout></xml><![endif]-->
</head>
<body lang="EN-US" link="#467886" vlink="#96607D" style="word-wrap:break-word">
<div class="WordSection1">
<p class="MsoNormal"><o:p> </o:p></p>
<p class="MsoNormal">Continued thanks for the notes, suggestions, and discussion. Many of the notes added perspective to concerns via suggestions that I believe we will be able to implement through a resubmitted license, by way of MGB’s IP approval channels.
<o:p></o:p></p>
<p class="MsoNormal">One of the lingering concerns that I have not adequately addressed to date is Pam’s and Mccoy’s indication “that even if MGB 1.0 was able to contract around DoE, reserving certain patent rights -- i.e., DoE patent rights, against the very
code MGB released under an open source license, this likely violates OSD 7 explicitly or implicitly”. This concern has persisted into the latest discussion points around drafter intent vs. license language, whereas I believe Simon eloquently simplified to
this into a decisive point for him: ”A license is only an open source license if it delivers all rights necessary to use, improve and share the software it licenses to everyone with no consideration of the way in which the rights are exercised. If there is
a risk (especially if it is intentional) that some rights are not delivered, then it should not be approved.” But, as I have stated in past notes, the intent of MGB 1.0 is not “contracting around DoE,” and in fact the MGB 1.0 license delivers all rights necessary
to use, improve and share THE SOFTWARE it licenses. <o:p></o:p></p>
<p class="MsoNormal"><o:p> </o:p></p>
<p class="MsoNormal">The goal of the patent grant in MGB 1.0 has is to narrow the applicability of the patent grant TO THE SOFTWARE licensed, not to contract around infringement or reserve rights against the code. Under the MGB 1.0 patent scheme DoE is still
a doctrine available to licensors, contributors, and licensees, but the patent grant’s applicability is constrained to the claims which embody the code released under an open source license, instead of expanding to other source code infringed (DoE) through
contribution that was not released under an open source license. In line with Pam’s recent comment that “the licensee must be free to use the licensed software free of any potential claim for infringement under any infringement theory,” under MGB 1.0, the
licensee is free to use The Licensed Software free of any potential claim for infringement, but they are not free to use different software that Was Not Licensed open source that may be infringed upon by later contributions. Thus, the intent of using “embodied”
over “infringed,” narrowing the breadth of the patent claims granted under the license, is similar to the patent grant mechanism utilized by the osi approved GNU v3 license which narrows the claims granted only to “essential patent claims,” not including
“claims that would be infringed only as a consequence of further modification of the contributor version.” Therefore, I’m struggling with why the GNU’s narrowing of the patent license to those essential patents would not also be considered a limitation to
infringement theories, as it explicitly does not include claims that “would be infringed only as a consequence of further modification of the contributor version?” Both the intent of MGB 1.0 and the intent of GNU v3 is to narrow their patent grants to claims
that are essential to open source distribution of the licensed copyrighted IP, and not to claims that aren’t embodied by the copyrighted IP or that would be infringed only as a consequence of further modification of the contributor version. I believe this
intent was shared by Larry Rosen in drafting the OSL & AFL, and that the patent grants in GNU, OSL, AFL, and MGB are in line with OSD in that they deliver all rights necessary to use THE SOFTWARE they license, but narrowly limit the patent to the software
itself, vs. extending it to the limits of patent infringement e.g. “claims (of a different software) that would be infringed (through DoE) only as a consequence of further modification of the contributor version.”<o:p></o:p></p>
<p class="MsoNormal"><o:p> </o:p></p>
<p class="MsoNormal">That said, I will be resubmitting the MGB 1.0 for consideration, taking note this thread’s recent concerns, but preserving our system’s obligations as stewards of scientific research and patient data. The narrowed patent grant and the acknowledgment
of data obligations are critical to MGB and other AMCs and also significantly differentiate the to-be resubmitted license from Apache 2.0. Although Carlo’s concerns around compliance information being included in a CLA were well received, completely scrapping
Section 6 on patient data misses the mark in managing the modern critical clinical research risks around patient data. As Carlo also opined in one of his notes, approved licenses should reflect the modern legal and technological climate. As the proliferation
of open science and open source digital tools rises, addressing data risk mitigation issues that are top of mind among AMCs within open source licenses will only accelerate innovation and spread of free software principles.<o:p></o:p></p>
<p class="MsoNormal"><o:p> </o:p></p>
<p class="MsoNormal">Marvin<o:p></o:p></p>
</div>
<p class="MsoNormal">The information in this e-mail is intended only for the person to whom it is addressed. If you believe this e-mail was sent to you in error and the e-mail contains patient information, please contact the Mass General Brigham Compliance HelpLine at <a href="https://www.massgeneralbrigham.org/complianceline">https://www.massgeneralbrigham.org/complianceline</a> .</p><br>
<p class="MsoNormal">Please note that this e-mail is not secure
(encrypted). If you do not wish to continue communication over
unencrypted e-mail, please notify the sender of this message immediately. Continuing to send or respond to e-mail after receiving this message means you
understand and accept this risk and wish to continue to communicate over
unencrypted e-mail. </p></body>
</html>