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Re: IBM Public License (again)

MJ Ray wrote:

> On 2004-05-13 16:54:36 +0100 Raul Miller <moth@debian.org> wrote:
>> For example, if IBM begins initiates some patent litigation, it looks
>> like
>> the license still stands -- even if that litigation winds up
>> nullifying
>> the patent in question. [...]
> What if you want to enforce some other patent applicable to software
> against IBM? What if IBM initiates against you and you want to use
> such a patent in a counterclaim?

The vagueness and broadness of "applicable to software" is a particular
problem.  Suppose I want to enforce my bicycle patent against IBM's new
bicycle-with-builtin-laptop, and IBM claims that my patent is "applicable"
to software?

If this referred to patents "applied to" software, I would be much happier.  

> Why should this software's licence, not directly involved in the cases
> above, terminate?

I think my summary of the patent clause goes something like this:

"If Recipient institutes patent litigation against a Contributor with
respect to a patent applicable to software (including a cross-claim or
counterclaim in a lawsuit), then any patent licenses granted by that
Contributor to such Recipient under this Agreement shall terminate as of
the date such litigation is filed."

We're worried that this is overly broad and could attack legitimate patents.

However, it only affects patent license grants.  Therefore, it may be OK
because most licenses apparently don't grant any patent licenses at all,
and this is no worse than that.

The policy on patents has been: if we know of no actual, legitimate,
enforced patents, we assume no patent grants are necessary.  (The wisdom of
this policy is questionable and can be debated.)

" In addition, If Recipient institutes patent litigation against any entity
(including a cross-claim or counterclaim in a lawsuit) alleging that the
Program itself (excluding combinations of the Program with other software
or hardware) infringes such Recipient's patent(s), then such Recipient's
rights granted under Section 2(b) shall terminate as of the date such
litigation is filed. "

This is OK, because this is a program self-protection clause.  If the
Recipient alleges that the Program infringes Recipient's patents, then
according to Recipient, nobody but Recipient has rights to do anything with
the program.  It seems reasonable to deny Recipient those rights as well,
since otherwise Recipient could *literally* take the program proprietary,
and effectively steal the work of the authors.

There are none so blind as those who will not see.

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