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RE: [ba-ohs-talk] open source + patents = puzzled

You have to look at the individual open-source license to see if there is
any provision about patented technology, etc.    (01)

Most open-source licenses are based primarily on copyright, and the
derivative work clauses are related to copyright as a property right.  Some
(including the GPL) do more concerning patents, but none that I've seen in
generic use embody any automatic license to specific patented technology.    (02)

It is inherent to genuine open source licenses that they grant the recipient
the use of the software and the freedom to redistribute the software, so
long it is under the same terms.  Also there must be source code available
(in contrast with freeware where the code is withheld).  So long as the
original licensor is the patent holder, it would seem that this grant is
complete and irrevocable, absent wording to the contrary.  If the license
allows creation of derivative works (including translations) without any
further license, that would seem to be clear as well.    (03)

As a practical matter, the greater problem for software is the unwitting or
careless use of patented technology in software for which the author does
not have a license to the patent (possibly subsequently issued but with
priority).  This exposes all users of the software, including the author, to
infringement actions.  For example, if the British Telecom patent on
hyperlinking holds up, we are all in deep doo-doo, and it has nothing to do
with open-source licensing.    (04)

I believe a standard way to put a patent in "open source" is not to claim
the patent but to disclose the innovation without patenting it.  The
publication of disclosure (and there are publications used specifically for
this purpose) basically makes the innovation unpatentable since it is
essentially a quit claim that also makes the invention no longer novel -- it
establishes prior art against anyones subsequent claim.    (05)

-- Dennis    (06)

-----Original Message-----
From: owner-ba-ohs-talk@bootstrap.org
[mailto:owner-ba-ohs-talk@bootstrap.org]On Behalf Of Johannes Ernst
Sent: Sunday, May 12, 2002 22:29
To: ba-ohs-talk@bootstrap.org
Subject: [ba-ohs-talk] open source + patents = puzzled    (07)

[ ... ]    (08)

Let's assume for a second that Developer also patented XYZ algorithm
(for simplicity, assume Developer patented XYZ algorithm "long
before" he open-sourced the code). The patent isn't limited to any
particular "embodiment" (I think that is the term -- this should be
the normal case if the attorney knows what he is doing).    (09)

It sounds like the Open Source license grants User certain rights ...
but what are those, exactly, given that there is a patent for XYZ
algorithm?    (010)

[ ... ]    (011)

Am I off-base here, or is there quite a can of worms hidden here
somewhere? Anyone ever looked at the patent portfolio of any of the
(particularly larger) companies that often release some of their own
code into the public domain?    (012)

Confused ...    (013)

Johannes.    (014)