For Approval: CeCILL - (now patent laundering)

[Wilson, Andrew]

Stephane Dalmas wrote: 

>>Andrew Wilson wrote:
>>Your patent grant in CeCILL, however, is so broad that
>>as written it raises the possibility of "patent laundering," i.e.,
>>Licensor's patents which are completely unrelated to the covered code
>>may be inadvertently licensed by releasing code under CeCILL.
>>  
>>
>This simple idea that some valuable patent may be "inadvertently" 
>included in a code exemplifies why people may think that software 
>patents are not be a good idea at all.... I can't really imagine a 
>useful invention that has been hard to discover and that can be 
>inadvertently included in a source code by a programmer. But that is of

>course another debate.

Not sure you understood my original point, but then "patent laundering"
is
an English expression that may not translate well into French.
What it means is the practice of expanding a patent license
or covenant not to sue beyond the context of the initial grant
to argue that additional products are also licensed.

The "locus classicus" of patent laundering, in the chip world
anyway, is where company A gives company B a site license to use
A's patents to make chips at B's silicon wafer fab.  B then turns 
around and argues that *devices manufactured for 3rd parties at B's
wafer fab* 
are also implicitly licensed under all of A's device patents.
Got the picture?

As written, CeCILL is an open invitation to try to launder software
patents: "Licensor undertakes not to enforce the rights granted by these

patents against successive Licensees using, exploiting or 
modifying the Software."  Note the CeCILL Licensor's covenant not to
enforce applicable
patents is *not* limited to use of the CeCILL licensed software itself,
but is arguably applicable to all Licensees who use, exploit, or 
modify the Software but who also might be infringing the patents
in other applications.

So, the following scenario can ensue.  Licensor (let's say France
Telecom
for purposes of illustration) has patented software which they want
to make available gratis to the open source community, but for which
they want to reserve the commercial rights for proprietary SW.  
FT licenses the SW out under CeCILL.  Crafty company B comes along, 
uses a copy of the CeCILL code somewhere, and then argues that FT cannot
sue them for use of the patent in company B's proprietary SW because
of the CeCILL non-assertion provision.  Voila, patent laundering.

This is either a subtle drafting flaw in CeCILL, or a somewhat sneaky
way to
attempt to wage guerilla war against SW patents.

Andy Wilson
Intel Open Source Technology Center