Changeset - 1f6399f54ece
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Bradley Kuhn (bkuhn) - 9 years ago 2015-02-02 15:35:34
bkuhn@ebb.org
Rework & expand discussion: express patent license

Upon consultation with Richard Fontana, we drafted together this rewrite
of the original paragraph discussing this issue.

The original paragraph was tersely written and indeed accurate.
However, it was likely comprehensible only to those already familiar
with patent licensing regimes and systems. As such, it fit poorly in
the tutorial, which is designed for all policy makers who care about
copyleft, who may in fact be new to patent policy and licensing.

Please note: Richard Fontana <fontana@sharpeleven.org> dictated to me
some of this text, and therefore he is likely a copyright and
"creator" (per CC-BY-SA 4.0) of some of this text. In fact, since we
wrote it collaboratively, I suspect Fontana and I are co-copyright
holders and co-creators of this commit.
2 files changed with 21 insertions and 8 deletions:
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comprehensive-gpl-guide.tex
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@@ -101,7 +101,8 @@ and Guide
 
{\parindent 0in
 
\begin{tabbing}
 
Copyright \= \copyright{} 2003--2005, 2008, 2014 \hspace{1.mm} \=  \kill
 
Copyright \> \copyright{} 2003--2005, 2008, 2014 \>  Bradley M. Kuhn. \\
 
Copyright \> \copyright{} 2003--2005, 2008, 2014--2015 \>  Bradley M. Kuhn. \\
 
Copyright \= \copyright{} 2015 \> Richard E. Fontana. \\
 
Copyright \> \copyright{} 2014 \>  Anthony K. Sebro, Jr. \\
 
Copyright \= \copyright{} 2014 \> Denver Gingerich. \\
 
Copyright \= \copyright{} 2003--2007, 2014 \>  Free Software Foundation, Inc. \\
gpl-lgpl.tex
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@@ -3836,14 +3836,26 @@ GPLv3~\S11\P3  makes this clear by defining ``patent
 
license,'' for purposes of the subsequent three paragraphs, as ``any express
 
agreement or commitment, however denominated, not to enforce a patent
 
(such as an express permission to practice a patent or covenant not to
 
sue for patent infringement)''
 

	
 
The definition does not include patent licenses that arise by
 
implication or operation of law, because the third through fifth paragraphs
 
of section 11 are specifically concerned with explicit promises that purport
 
to be legally enforceable. The final paragraph of section 11 explicitly
 
sue for patent infringement)''.
 

	
 
``Express'', as used GPLv3~\S11\P3, is a term often used in legal writing as
 
an antonym to ``implied''.  Thus, GPLv3's definition of ``patent license''
 
does not include those patent licenses which arise by
 
implication or operation of law\footnote{FIXME: explain this}.
 
Instead, GPLv3~\S11\P3--5 are specifically concerned with explicit promises
 
that are purportedly legally enforceable.
 

	
 
Nevertheless, unlike traditional commercial patent licensing
 
agreements\footnote{FIXME: note such a clause is rare, if not unique.},
 
rather than confining the patent license grant to some narrow set of such
 
express situations, GPLv3 preserves the
 
\hyperref[gpl-implied-patent-grant]{existing implied patent licensing structure}
 
found in GPLv2.  Specifically, the final paragraph of GPLv3~\S11 explicitly
 
preserves the availability of patent licenses arising by implication or
 
operation of law.
 
operation of law.  GPLv3~\S11's final paragraph dissuades potential
 
misinterpretation disparity between GPLv2 and GPLv3 --- namely, that some
 
might argue an explicit patent license would otherwise cause any implied
 
patent license to evaporate.
 

	
 
GPLv3~\S11\P5 is commonly called GPLv3's downstream shielding provision.  It
 
responds particularly to the problem of exclusive deals between patent
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