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About Those 882 Novell Patents: This is Where OIN Comes In - Updated
Monday, December 06 2010 @ 10:58 PM EST

I have some important news for you. It's about those 882 Novell patents that are being sold to a Microsoft-organized consortium in connection with the sale of Novell to Attachmate. I've been worrying about those patents, and I was wondering what happens to Novell's license to the Open Invention Network after the sale. So I took the time to find out. And it's very good news.

Here's how it works. The patents of OIN members and licensees are licensed to each other royalty-free in perpetuity. Even on a sale, the license remains in force for all pre-existing members/licensees. If you are a member/licensee of OIN prior to the closing on the Novell deal, then, you are covered. The proposed closing date is January 23rd, so you still have time to join OIN and get the benefit of the license to those patents. Then, if Microsoft shows up at your door, you can say, "Thanks, but no thanks. I already have a license." So here's what it all adds up to, by my reading: if ever you were thinking of joining the Open Invention Network, this is the sensible time to do it, as long as you get it done before this sale closes and that door shuts with respect to the Novell patents.

[ Update: Here's the license page so you can read the agreement, see who is already a licensee, and find a better contact email, license@openinventionnetwork.com. Here's the Linux Definitions page.]

One can't assume that the Microsoft consortium has evil plans for these patents, but on the other hand, consider who we are talking about. Novell's license to OIN members can't be revoked, even on the sale, so what's the down side? Looking at it the other way, anyone who is not a member or licensee prior to the sale closing, even if it were to join OIN later, will have to deal with the Microsoft consortium regarding those patents. Let me repeat: if you are an OIN member or licensee *prior to the closing*, you are covered by the Novell license to OIN.

I *know*! IANAL, but even I can read these tea leaves.

I've learned also that not all of Novell's patents are going to the consortium. The two businesses, Novell and SUSE, retain all relevant patents, not just the UNIX copyrights. So that's the other good news. The bad news is that no one yet knows, that I could find out anyway, what the 882 patents are. So plan for the worst seems to be the idea.

It's free to join OIN, so long as you pledge you won't use your patents against Linux or the ecosystem, and so long as you let other members be protected too. The OIN people can explain it to you in detail, and your lawyer can advise you in your particular situation. But I mean, how hard is that? From OIN's website:

Open Invention Network® is refining the intellectual property model so that important patents are openly shared in a collaborative environment. Patents owned by Open Invention Network® are available royalty-free to any company, institution or individual that agrees not to assert its patents against the Linux System. This enables companies to make significant corporate and capital expenditure investments in Linux — helping to fuel economic growth.

Open Invention Network® ensures the openness of the Linux source code, so that programmers, equipment vendors, ISVs and institutions can invest in and use Linux with less worry about intellectual property issues. Its licensees can use the company’s patents to innovate freely. This makes it economically attractive for companies that want to repackage, embed and use Linux to host specialized services or create complementary products.

See? You can be a programmer, an equipment vendor, an ISV, or an institution, company or individual. Also here:
Open Invention Network® believes that one of the keys to innovation in the Linux community is the ability to share software code and ideas. Open Invention Network® acquires patents and makes them available royalty-free to any company, institution or individual that agrees not to assert its patents against the Linux System. This enables companies to make significant corporate and capital expenditure investments in Linux — helping to promote collaboration and fuel economic growth.
You won't get a royalty-free offer from Microsoft, y'all, on those same patents after January, I don't think. Capice?

You don't have to be an HP or a Dell, although I hope they are thinking about OIN too. You can be a project. Gnome is a member, and so is Mozilla. You don't have to currently own any patents. You can be a company that just uses Linux or develops with it or for it and wants protection from harassment. Think AutoZone. Remember what SCO put them through? Imagine if SCO had had patents. So think seriously about worst-case scenarios, please. You don't want to be the straggler that gets picked off from the group.

Spread the word, please, so everyone knows what is possible and can give it consideration. Don't assume you can't join. There is no USA-only requirement on OIN membership. If you are interested, ask OIN (info@openinventionnetwork.com). That's what I did.

No wonder Microsoft's minions have been trash-talking OIN recently. They surely knew this was going to happen for some time. They have lawyers. And they knew about this deal before we did. They likely realize that if you don't know about how OIN works, or imagine it's pointless, you won't sign up in time. So oily, the dark side. Did you read the Telegraph story today, "Dark forces gunning for Google", about Microsoft funding entities to attack Google and IBM in courts, via regulatory complaints, and by contacting journalists? The author has been getting messages:

ICOMP, acting through its secretariat, the public relations firm Burson Marsteller, is still sending unsolicited attacks on Google to journalists, aimed at discrediting the company by agitating the media and advertisers. This column has received a number of unsolicited messages from Burson Marsteller in the past year. Several have been striking in their language, and only the most recent declared ICOMP's financial ties to Microsoft. ...

That last message arrived after I had spoken at length to Jack Evans, Microsoft's Director of Public Relations (Legal and Policy) on the telephone about ICOMP. Although ICOMP's reports and website do state that the initiative is "funded by member contributions as well as sponsorship from Microsoft", until last week it was frequently omitting that information from its emails to journalists. Nor does the statement make clear that Microsoft is responsible for the majority of ICOMP's money: Microsoft is ICOMP's sole trustee and underwrites its funding - a fact confirmed by this PDF residing on ICOMP's own website. The document states that Microsoft, as trustee, both selects ICOMP's directors and guarantees its debts.

Earlier this year, we reported that UK search site Foundem, along with Microsoft-owned Ciao.co.uk, had made complaints to the EU about Google. Foundem is a member of ICOMP.

So this is how Microsoft spends its money, but the author has some advice for Microsoft:
Microsoft has recently begun to rehabilitate its reputation with some impressive software releases. But if it is to completely shake off the image of an evil corporate behemoth, it must stop this sort of lobbying. In the age of scarily thorough online transparency, you just can't get away with rubbish like this any more.
Especially if journalists tell. I can tell you, having been on the receiving end myself of such campaigns, it helps if everyone who gets these messages realizes what the game is and reveals it openly.

Anyway, Microsoft is Microsoft. It would be such a nice world if there was no Microsoft, but in the meantime, one must plan and strategize, because they do. I'm greatly relieved to learn that patents licensed to OIN members are rights in perpetuity. It means the community has time to take steps to protect itself from stupid patent lawsuits brought by Microsoft, its consortium, or any other loathsome proxies, and I hope you will think about this carefully and act in your own best interest.

Microsoft, it appears, wants to use patents to cause Linux to cost more so it can compete against it better, and it wants you to be a forced Microsoft "partner" if you sell or use Linux. And you know how well it works out when you partner with Microsoft. You end up road kill.

Just ask Novell.


  


About Those 882 Novell Patents: This is Where OIN Comes In - Updated | 401 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Thread
Authored by: bugstomper on Monday, December 06 2010 @ 11:05 PM EST
Please summarize in the Title box as in error->correction or
s/error/correction to make it easy to scan to see if an error has already been
mentioned.

[ Reply to This | # ]

  • no Microsoft -> no Microsoft anymore - Authored by: Anonymous on Tuesday, December 07 2010 @ 05:48 AM EST
  • After 20 years.... - Authored by: Anonymous on Tuesday, December 07 2010 @ 09:47 AM EST
  • Corrections Thread - Authored by: Anonymous on Tuesday, December 07 2010 @ 04:05 PM EST
  • Join? - Authored by: Anonymous on Wednesday, December 08 2010 @ 11:21 AM EST
    • Join? - Authored by: Anonymous on Wednesday, December 08 2010 @ 05:07 PM EST
      • Join? - Authored by: PJ on Wednesday, December 08 2010 @ 05:25 PM EST
  • capice -> capisce - Authored by: Anonymous on Thursday, December 09 2010 @ 08:43 AM EST
    • capice -> capisci - Authored by: Anonymous on Thursday, December 09 2010 @ 08:56 AM EST
Off Topic threads
Authored by: bugstomper on Monday, December 06 2010 @ 11:06 PM EST
Please stay off topic here but feel free to post in HTML Formatted mode with
those nicely clickable links.

[ Reply to This | # ]

News Picks Thread
Authored by: bugstomper on Monday, December 06 2010 @ 11:09 PM EST
Pick your News right here. Please type the title of the News Pick article you
are commenting on the Title box and include the link to the article in your
comment for the convenience of readers after the article has scrolled off the
News Picks sidebar.

[ Reply to This | # ]

COMES goes here - 2377 to go
Authored by: bugstomper on Monday, December 06 2010 @ 11:12 PM EST
Find a Comes v Microsoft document, transcribe it with HTML markup.
Post it here in a comment as Plain Old Text
with the HTML tags to make it easy for PJ to copy and paste.

The easy way to find a document that needs transcriptions is on the
Comes v. Microsoft Exhibits by Number pages.
Scroll down to find one without a transcription.

Shell script to display how many Comes documents have not yet had descriptions or transcripts posted

curl -s \
"http://groklaw.net/staticpages/index.php?page=ComesExhN0[1-4]" | \
grep -c '<td></td>'

Shell script to display the numbers of the next N documents whose descriptions or transcripts have not yet been posted. Change the 5 to however many of the next available document numbers you want to see.

n=5 ; \
curl -s \
"http://groklaw.net/staticpages/index.php?page=ComesExhN0[1-4]" | \
grep -m $n -B 1 '<td></td>' | \
sed -n 's/.*"E\(.*\)"><a.*$/\1/p'

[ Reply to This | # ]

It sure seems ridiculus
Authored by: kawabago on Monday, December 06 2010 @ 11:27 PM EST
It just doesn't make sense that inventors must band together to protect
themselves from the patent system. Surely this is not what the founding fathers
had in mind when they put it in the constitution. Since they left it optional,
up to congress to implement or not, maybe they weren't sure patents were such a
great idea. It is time to look at abolishing the patent system before it drains
the last of the life out of the economy.


[ Reply to This | # ]

  • too late - Authored by: Anonymous on Tuesday, December 07 2010 @ 04:29 AM EST
    • too late - Authored by: Anonymous on Tuesday, December 07 2010 @ 09:27 AM EST
      • too late - Authored by: Anonymous on Tuesday, December 07 2010 @ 12:45 PM EST
  • It sure seems ridiculus - Authored by: PJ on Tuesday, December 07 2010 @ 02:31 PM EST
  • Ping, ping, ping... - Authored by: Anonymous on Wednesday, December 08 2010 @ 07:00 PM EST
    • in other words - Authored by: Anonymous on Thursday, December 09 2010 @ 03:32 AM EST
      • No - Authored by: Anonymous on Thursday, December 09 2010 @ 05:27 AM EST
Just sent an email asking how to join
Authored by: Cypher3c on Monday, December 06 2010 @ 11:31 PM EST
After seeing this article, I followed PJ's advice and sent an email to OIN about
joining.

Hey, its free, and it protects me from certain patents, so why not?

I have done some development work (licensed GPL v3 :) ), probably nothing that
these patents cover, but you never know...

Any other takers?

[ Reply to This | # ]

sounds like copyright lawsuits
Authored by: Anonymous on Tuesday, December 07 2010 @ 04:26 AM EST
ala extortion
join or get sued

pay or get sued...
again showing the USA system is flawed.

[ Reply to This | # ]

Christmas is coming
Authored by: MadTom1999 on Tuesday, December 07 2010 @ 04:42 AM EST
The goose is getting fat.
Is that the sound of chairs
Hurled in Balmers flat.

[ Reply to This | # ]

But new startups, founded after closing, are screwed
Authored by: Anonymous on Tuesday, December 07 2010 @ 04:55 AM EST
Re: "if you are an OIN member *prior to the closing*, you are
covered by the Novell license to OIN."

But new startups, founded after closing, are screwed. I've
never seen a clearer case of patents being used to protect
incumbents and damage innovation.

- Pete Austin

[ Reply to This | # ]

About Those 882 Novell Patents: This is Where OIN Comes In
Authored by: old joe on Tuesday, December 07 2010 @ 10:17 AM EST
A Wikipedia page has now been started about ICOMP, based on the Telegraph
article and documents on their web site.
http://en.wikipedia.org/wiki/Initiative_for_a_Competetive_Online_Marketplace

If you feel like adding stuff there make sure you cite a source. Wikipedia
policy in a dispute is to delete anything that isn't supported by references so
stick to the facts. We can get away with saying ICOMP's "sole purpose is to
attack Google" because that can be attributed to the Telegraph which is
still pretty highly respected for some reason.

If you can put the references in Wikiformat that is good but not required -
someone else can come along and do that later.

The Telegraph article mentions previous articles in the Guardian and the NY
Times. Can we track those down?
Something about their activities in other countries could be useful, or their
links to complaints to the EU. Remember that if you can only find a tenuos link
then make that clear in what you add here. e.g.
[[name of firm]] who laid a complaint against Google for [[WP page about the
complaint]] is a member of the ICOMP council.
Every edit you make on WP is tracked so make sure your track record shows you
have been helpful and reasonable. This will make a difference if ever find
yourself in a dispute.

[ Reply to This | # ]

About Those 882 Novell Patents: This is Where OIN Comes In
Authored by: Anonymous on Tuesday, December 07 2010 @ 01:01 PM EST
"Microsoft has recently begun to rehabilitate its reputation with some
impressive software releases. But if it is to completely shake off the image of
an evil corporate behemoth, it must stop this sort of lobbying. In the age of
scarily thorough online transparency, you just can't get away with rubbish like
this any more."

I don't think that businesses care about M$'s image. M$
could be openly sponsoring genocide and businesses would
still buy their products. As for individuals, most just
get stuck with M$ products because they have no convienent
alternative choices. Bottom line is still like the old
joke: "Q: Where does an 800 lb gorilla sit? A: Any where
it wants."

[ Reply to This | # ]

Differences between OIN website and PJ's article
Authored by: Anonymous on Tuesday, December 07 2010 @ 01:39 PM EST
PJ said:
The patents of OIN members are licensed to each other royalty-free in perpetuity.
That's not what main pages on the OIN website say, at least. As PJ quoted from their website:
Patents owned by Open Invention Network® are available royalty-free to any company
That's not talking about patents owned by members of OIN; it is talking about patents owned directly by Open Invention Network LLC. Novell can't sell those because they don't own them. The patents OIN owns are listed here. There are only 210 of them so it obviously doesn't include the group of 882 that CPTN Holdings is buying. The list should include the 39 patents that OIN got from Novell, though. There isn't any reason to worry about the 39 being sold to CPTN Holdings LLC, because OIN would have to sell them. (I doubt that OIN would even be allowed to do that, but I didn't check.)

If you look inside the press releases, you can find things like this:
OIN has amassed a broad portfolio of patents, including patents held by nominees on its behalf
Well, that's different. That's talking about patents that OIN doesn't actually own. Is there any reason to assume that Novell's 882 are among these, though?

What PJ says about the nature of OIN seems to conflict with the website, too. She seems to think it's some sort of an organization, but according to the website, it's a company. As the FAQ says:
Open Invention Network® is an incorporated, Limited Liability Company.
It calls it's major stockholders "members" and they are listed here. PJ said Gnome and Mozilla were members, but OIN didn't list them. There doesn't even seem to be a way to join as a member (no membership application, etc.), but there doesn't seem to be any need to do that. OIN says:
Open Invention Network® acquires patents and makes them available royalty-free to any company, institution or individual that agrees not to assert its patents against the Linux System.
(There is a similar quote in PJ's article.) That says nothing about needing to become a "member" of anything. But the press releases are different, again. The same press release quoted from before says this:
OIN licensees, which include founding members and associate members, benefit from leverage against patent aggression and access to enabling technologies through OIN's shared intellectual property resources.
It's a shame they don't do a better job than that of communicating. In any case, I wouldn't assume that the 882 Novell patents would be covered by any agreement with OIN, unless you could verify it.

[ Reply to This | # ]

Do OIN members have the ability to sublicense under another license such as the GPL?
Authored by: Anonymous on Tuesday, December 07 2010 @ 01:46 PM EST

If they can, then perhaps the problem isn't quite as large for non-members as it might first appear.

RAS

[ Reply to This | # ]

OIN and the Oracle vs Google lawsuit
Authored by: Anonymous on Tuesday, December 07 2010 @ 02:17 PM EST
I looked at the OIN site, but I don't understand it. While looking, I noticed
that Oracle is a licensee and it made me wonder about the Oracle suit against
Google pertaining to Android.

OIN seems to be geared towards the "Linux Ecosystem". Is Android part
of that? How does one discern where the line is between being in the Linux
Ecosystem and being out of it?

I'm sure that if OIN membership was of any use as a defense for Google, their
attorneys would have already thought of it. However, the thought has made me
curious about how the mechanics of OIN actually work.

[ Reply to This | # ]

OIN hobbiest memberships etc?
Authored by: BitOBear on Tuesday, December 07 2010 @ 05:01 PM EST
So are there OIN memberships for individuals etc?

A lot of these groups are problematic in that they leave out the one man shops
and the "while I am not at work" professionals.

[ Reply to This | # ]

RE: "I've been worrying about those patents..."
Authored by: Anonymous on Tuesday, December 07 2010 @ 07:08 PM EST
Hmmm... well, I admire PJ quite a bit, but I feel I must make a personal comment
here. While I would encourage any individual or company to join and support the
OIN with heartfelt urgency, I'm not quite convinced that PJ has really been
worrying about the Novell patents.

If there's anything I've learned about PJ during my years as a Groklaw member,
it's that she is well aware of the terms of the GPL. And, as PJ has been quite
willing to instruct us here on Groklaw, the terms of the GPL are already
protecting us against any potential Microsoft threats with regard to the
Novell-owned patents. Novell, after all, is a distributor of Linux, and has
received substantial rewards for doing business as an open source company under
the terms of the GPL. In effect, open source software cannot be faulted for
violating these patents unless Novell's own Linux distributions did not utilize
the patents.

This means that the 882 patents are only potentially problematic to a future
publisher if the technology is added to Linux "post sale". Surely, if
it is likely that this will occur, that future Linux will contain technology
from the "882 patents" that has not already been distributed by
Novell, then OIN protection will have value.

Of course, in court it is always useful to have two solid points of law on which
to stand in lieu of one. Nonetheless, I don't think PJ's point here is that she
was really worrying about the "882 patents".

Rather, membership in the OIN carries with it benefits that far exceed the 882
Novell patents, together with responsibilities necessary for participation in
open source collaboration. I'm sure that PJ would agree that this point
outweighs concern over the Novell IP...

[ Reply to This | # ]

About Those 882 Novell Patents: Oracle?
Authored by: cm16 on Tuesday, December 07 2010 @ 08:38 PM EST
Not sure if this has been mentioned already - but could those 882 patents be
related to word processing? Perhaps MS has acquired them in preparation for
battle with Oracle.

Perhaps MS is worried that Oracle just acquired a bunch of Java-related patents
and is worried about .NET? WordPerfect era patents might help in attacking
openoffice?

Probably The Document Foundation should sign up with OIN if they haven't
already.

[ Reply to This | # ]

About Those 882 Novell Patents: This is Where OIN Comes In
Authored by: wvhillbilly on Tuesday, December 07 2010 @ 10:25 PM EST
From The Telegraph:
Three years on, it looks like nothing has changed: ICOMP, acting through its secretariat, the public relations firm Burson Marsteller, is still sending unsolicited attacks on Google to journalists, aimed at discrediting the company by agitating the media and advertisers. . .

Although ICOMP's reports and website do state that the initiative is "funded by member contributions as well as sponsorship from Microsoft", until last week it was frequently omitting that information from its emails to journalists. Nor does the statement make clear that Microsoft is responsible for the majority of ICOMP's money: Microsoft is ICOMP's sole trustee and underwrites its funding . . .

Is there any truth to these stories ICOMP is putting out to journalists against Google, or is it all false?
And if there is false information being given out, could Google go after ICOMP and/or Microsoft as their chief sponsor, for trade libel or the like?

---
"It is written." always trumps, "Um, ah, well, I thought..."

[ Reply to This | # ]

MS IE9 gets new anti-tracking privacy feature. Mozilla Shamed?
Authored by: SilverWave on Wednesday, December 08 2010 @ 01:56 AM EST
Internet Explorer 9 gets new anti-tracking privacy feature

---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

[ Reply to This | # ]

Matt Asay leaving Canonical
Authored by: SilverWave on Wednesday, December 08 2010 @ 10:41 AM EST
Matt Asay leaving Canonical

---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

[ Reply to This | # ]

Why is FSF not an OIN member?! Did they forget to apply?
Authored by: IMANAL_TOO on Thursday, December 09 2010 @ 01:28 AM EST
Why is the FSF not an OIN member?!

If you read the OIN member page you find both KDE and Gnome and other open source household names.

But, why can't I find the FSF (Free Software Foundation) among the OIN members and licencees? Is it against some principle to them, or did someone just forgot to apply?!

If the latter, please make those calls fast!




---
______
IMANAL


.

[ Reply to This | # ]

What is the "Linux System"?
Authored by: soronlin on Thursday, December 09 2010 @ 06:33 AM EST
The license says:
“Linux System” shall, at any time, have the meaning set forth, at that time, on www.openinventionnetwork.com.
Bute I cannot find anywhere on the website where the term is defined. Perhaps someone else can point out where I've missed it. Since I have no intention of suing anybody over anything, much less patents that I don't hold, I don't really care, but shouldn't this most important term actually be defined somewhere?

[ Reply to This | # ]

Legal theory on the scope and limitations of implied patent licenses
Authored by: Anonymous on Thursday, December 09 2010 @ 05:59 PM EST

I came upon a couple of informative articles by Laura Majerus, OSI Director of Legal Affairs and a partner at law firm Fenwick & West, that gave a good explanation of the legal basis behind a claim that the GPLv2 provides to some degree an implicit patent license.

Patent Rights and Open Source— Can They Co-exist?

In this article, Ms. Majerus talks about the patent rights of a software author or modifier that distributes their work under a GPLv2 license.

It is black-letter patent law that once a patent is granted, a patent owner has the right to exclude other from making using and selling his patented invention if he so chooses. Setting aside any arguments that the Preamble of the GPL is somehow not a part of the license, it seems clear that an author or modifier who distributes software under the gpl cannot assert his patent rights against subsequent users and redistributors of the GPL’d software. Thus, there is at least an implied license to those who receive the GPL’d software in any patents covered by the software.

The author then goes on to consider the case where a software author is operating under a patent license granted by a third party. She explains that unless the author has a right to sublicense the patent license to all subsequent users, the software may not be redistributable under the GPLv2.

Thus, if an author does not have the right to sublicense or if the sublicense would require the payment of royalties, the author must chose between not including the patented technology or not releasing the software. Thus, companies planning to distribute GPL’d software should consider whether the software is subject to existing patent licenses. If so, and if sublicensing rights cannot be obtained, the patented technology should not be included in the GPL’d distribution.

This actually raise some questions as to whether the blanket OIN patent licenses granted only to members is such a case. Members may enjoy the protection of patent license grants from OIN other members, but these rights cannot be sublicensed to other users who are not members.

P otential Defenses of Implied Patent License Under the GPL

In the second article, the author discusses in more detail some specific aspects of an implied patent license granted by the GPLv2. She explains that there are four legal doctrines of implied license: legal estoppel, equitable estoppel, conduct, and acquiescence. Typically, one of the two estoppel theories is used to present a case for an implied license.

For legal estoppel:

In determining the existence of legal estoppel, a court considers the scope of the right granted and whether the patentee’s actions impact those rights. Where the remedies sought by the patentee would not impact what is granted under the license, there is no reason to imply a license through legal estoppel.
Satisfying the legal estoppel theory also requires showing that the licensor received valuable consideration for the license. One possible item of consideration received under the GPL is the reciprocity agreement – the promise by the licensee to license any further distribution of the program and any works based on it under the terms of the GPL.

For equitable estoppel:

Equitable estoppel uses a very different theory to arrive at an implied patent license. This defense involves finding a reasonable inference by the licensee based on the licensor’s conduct. Equitable estoppel requires that the patentee communicate to the accused infringer in some manner its intent not to sue, that the infringer rely on this communication, and that allowing the patentee to proceed with its claim would materially prejudice the alleged infringer. As with the other implied license doctrines, fairness and factual details factor heavily into the finding.

She goes on to point out one particular limitation on the rights granted through an implied license. If the software has been modified to include patented technology in a derivative work that was not present in an original release, the arguments for an implied license are legally much weaker.

It is also possible that a later modified version of the program might actually embody the invention of a different patent held by the distributor. This forms a more difficult scenario, because the GPL v2.0 puts no inherent limits on what modifications can be made to the licensed program. Later derivative works may function very differently from the original program that the company released and licensed. A modification may embody patents that the company never intended to allow to be used freely.

Where a company sues on a patent embodied in the changes of a derivative work, the arguments to imply a license may be less persuasive. In particular, each theory of implied license requires conduct by the licensor that indicates an intention not to enforce the patent. Such requisite conduct does not seem present for a patent covering software not included in the patentee’s GPL release. Both of the estoppel doctrines have additional requirements that make their application to this example considerably weaker.
In short, the conduct of releasing software under the GPL, while implying permission from the patentee to use this specific software and alter or improve the software in customary ways, does not necessarily imply permission to add to the software other separate inventions patented by the patentee. Specifically, given the language of the current GPLv2.0, it is certain that a modified version of software that infringes patents covering other inventions not released under GPL by the patentee will not provide its users with the same implied license defenses likely accessible to those who only practice inventions available in the original software released under GPL by the patentee.

This leaves open the question of whether mere distribution of a large compilation work such as the Linux kernel provides a broad umbrella of implied patent license protection equivalent to a fully conscious and deliberate release of specific software authored by a patent holder under the GPLv2. The case for that appears to be a much harder one to make before the courts.

--bystander1313

[ Reply to This | # ]

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