[License-review] Request for approval of new "MGB 1.0" license (Pamela Chestek)

[Carlo Piana]

All, Martin,

it is quite difficult to understand this answers what, as the thread is lost.

However, I am not sure how this email does respond to the objections raised by Pam, which are not just the patent grant patentable subject matter, but on the fact that the grant is defective by not granting all the rights a users shall  have no matter what the scope of the grant.

On a more general note, please be always mindful that these licenses must be designed to work under any relevant jurisdiction that would stand in the way of granting the four freedoms to everybody, under any possible way a particular right that could impair or thwart such release. Nitpicking that under a particular jurisdiction the language would be equivalent or work the same way is not necessarily a good defense of the license.

Finally, each license stand in their own capacity. Past approvals and rejections can be of some help understanding in practice what could work or not work, but since our understanding, experience, legal framework and other variables change with time, there is no stare decisis principle, therefore, it would be preferable discussing what the license says and how the license works, rather than making an equivalence with other licenses.

Cheers

Carlo, in his own personal capacity.


----- Messaggio originale -----
> Da: "Barksdale, Marvin" <mbarksdale at mgb.org>
> A: "license-review at lists.opensource.org" <license-review at lists.opensource.org>
> Inviato: Mercoledì, 19 febbraio 2025 21:36:15
> Oggetto: Re: [License-review] Request for approval of new "MGB 1.0" license (Pamela Chestek)

> A small note on our interpretation of the Apache license as we prepare to
> resubmit the MGB 1.0 according to the guidance to date:
> 
>> Your interpretation of the Apache license is not one that others share.
> The Apache patent clause is:
> "[E]ach Contributor [patent owner] hereby grants to You [the licensee] a
> perpetual, worldwide, non-exclusive, no-charge, royalty-free, irrevocable
> (except as stated in this section) patent license to make, have made, use,
> offer to sell, sell, import, and otherwise transfer the Work where such license
> applies only to those patent claims licensable by such Contributor that are
> necessarily infringed by their
> Contribution(s) alone or by combination of their Contribution(s) with the Work
> to which such Contribution(s) was submitted."
> .... I don't see anything there that suggests what you say is true, that somehow
> the Contributor has granted a license to claims that weren't embodied in their
> Contribution or the combination with the preexisting work at the time of the
> Contribution. In your hypo, MGB has not contributed after the Licensee made
> their changes, so MGB has not granted any patent rights to any subsequent
> version of the software. <
> 
> 
> Thank you for the notes and references. Respectfully several MGB attorneys share
> my interpretation of Apache 2.0's patent grant's use of "infringement" to
> enable rights that potentially extend pass the claims that were embodied by a
> Contribution, or the combination with the preexisting work. In fact earlier in
> this thread Mccoy, made the point that he had not seen case law that allows the
> Doctrine of Equivalents (DoE) to be contracted around, but never that DoE
> doesn't exist nor that it doesn't extend infringement past what's embodied in a
> claim.   In the Apache Foundation example, the fact pattern clearly states
> "...at the time my contribution is included in that Work, none of my patent's
> claims are subject to Apache's Grant of Patent License." The issue  MGB 1.0
> looks to address is that some of the licensor's or contributor's patent claims
> may be subject to the Apache grant at the time of the license or contribution
> due to the "infringement" standard, not that they later become su
> bject to the grant due to later contributions.  The facts in the Apache
> Foundation example are different, as in the MGB presented fact pattern the
> initial license grants a patent to one claim of a patented invention where open
> source code is embodied  but not to another claim in the patent where a closed
> source software is embodied. Thus both at the time of license and at the time
> of contribution there are patent claims that are subject to Apache's grant.  As
> discussed in this thread,  our forthcoming resubmission will substitute the AFL
> 3.0 patent grant which replaces "infringement" with "embodied  by," offering a
> more confined grant, that we believe adheres to osd indications.
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