Careful readers of the GPL have suggested that its explicit prohibition

against imposition of further restrictions\footnote{GPLv2, section 6; Draft

  3, section 10, third paragraph.} has, or ought to have, implications for

those who assert patents against other licensees.  Draft 2 took some steps to

clarify this point in a manner not specific to patents, by describing the

imposition of ``a license fee, royalty, or other charge'' for exercising GPL

rights as one example of an impermissible further restriction.  In Draft 3 we

have clarified further that the requirement of non-imposition of further

restrictions has specific consequences for litigation accusing GPL-covered

programs of infringement.  Section 10 now states that ``you may not initiate

litigation (including a cross-claim or counterclaim in a lawsuit) alleging

that any patent claim is infringed by making, using, selling, offering for

sale, or importing the Program (or the contribution of any contributor).''

That is to say, a patent holder's licensed permissions to use a work under

GPLv3 may be terminated under section 8 if the patent holder files a lawsuit

alleging that use of the work, or of any upstream GPLv3-licensed work on

which the work is based, infringes a patent.

% FIXME: These don't belong here, but it's closer to where it ought to be now.

It is important to note that section 11, paragraph 3 refers to a work that is

conveyed, and section 10, paragraph 2 refers to a kind of automatic

counterpart to conveying achieved as the result of a transaction. 

The patent licensing practices that section 7 of GPLv2 (corresponding to

section 12 of GPLv3) was designed to prevent are one of several ways in which

software patents threaten to make free programs non-free and to prevent users

from exercising their rights under the GPL. GPLv3 takes a more comprehensive

approach to combatting the danger of patents.

and to varying degrees, we seek to protect the users of GPL-covered programs

Therefore, we have designed GPLv3 to reduce the patent risks that distort and

threaten the activities of users who make, run, modify and share free

software.  At the same time, we have given due consideration to practical

participate in distribution and development of GPL-covered software.  Our

Draft 3 features several significant changes concerning patents.  We have

made improvements to earlier wording, clarified when patent assertion becomes

a prohibited restriction on GPL rights, and replaced a distribution-triggered

non-assertion covenant with a contribution-based patent license grant. We

have also added provisions to block collusion by patent holders with software

distributors that would extend patent licenses in a discriminatory way.

Draft 3 introduces the terms ``contributor'' and ``contribution,'' which are

used in the third paragraph of section 10 and the first paragraph of section

11, discussed successively in the following two subsections.  Section 0

defines a contributor as ``a party who licenses under this License a work on

which the Program is based.'' That work is the ``contribution'' of that

contributor.  In other words, each received GPLv3-covered work is associated

with one or more contributors, making up the finite set of upstream GPLv3

licensors for that work. Viewed from the perspective of a recipient of the

Program, contributors include all the copyright holders for the Program,

other than copyright holders of material originally licensed under non-GPL

terms and later incorporated into a GPL-covered work.  The contributors are

therefore the initial GPLv3 licensors of the Program and all subsequent

upstream licensors who convey, under the terms of section 5, modified works

on which the Program is based.

For a contributor whose contribution is a modified work conveyed under

section 5, the contribution is ``the entire work, as a whole'' which the

contributor is required to license under GPLv3.  The contribution therefore

includes not just the material added or altered by the contributor, but also

the pre-existing material the contributor copied from the upstream version

and retained in the modified version. Our usage of ``contributor'' and

``contribution'' should not be confused with the various other ways in which

those terms are used in certain other free software licenses.\footnote{Cf.,

  e.g., Apache License, version 2.0, section 1; Eclipse Public License,

  version 1.0, section 1; Mozilla Public License, version 1.1, section 1.1.}

The term ``patent license,'' as used in the third through fifth

paragraphs of section 11, is not meant to be confined to agreements

formally identified or classified as patent licenses.  The new second

paragraph of section 11 makes this clear by defining ``patent license,''

for purposes of the subsequent three paragraphs, as ``a patent license,

a covenant not to bring suit for patent infringement, or any other

express agreement or commitment, however denominated, not to enforce a

patent.''  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.

Our previous drafts featured a patent license grant triggered by all

acts of distribution of GPLv3-covered works.\footnote{In Draft 2 we

rewrote the patent license as a covenant not to assert patent claims. We

explain why we reverted to the form of a patent license grant in \S\

\ref{cov}.} Many patent-holding companies objected to this policy. They

have made two objections: (1) the far-reaching impact of the patent

license grant on the patent holder is disproportionate to the act of

merely distributing code without modification or transformation, and (2)

it is unreasonable to expect an owner of vast patent assets to exercise

requisite diligence in reviewing all the GPL-covered software that it

provides to others.  Some expressed particular concern about the

consequences of ``inadvertent'' distribution.

``disproportionate,'' that is to say unfair, is not valid. Since

aggression against free software developers is an egregious act,

preventing that act cannot be unfair. 

typical GNU/Linux distribution includes thousands of programs. It would

and passes on a new version of the distribution. Moreover, this question

We concluded it would be more effective to make a partial concession

distribution themselves, so that the conditions of section 10 would

apply to assertion of their patents.  We therefore made the stricter

section 11 patent license apply only to those distributors that have

Therefore, in Draft 3, the first paragraph of section 11 states that a

contributor's patent license covers all the essential patent claims

implemented by the whole program as that contributor distributes it.

Contributors of modified works grant a patent license to claims that

read on ``the entire work, as a whole.'' This is the work that the

copyleft clause in section 5 requires the contributor to license under

GPLv3; it includes the material the contributor has copied from the

upstream version that the contributor has modified.  The first paragraph

of section 11 does not apply to those that redistribute the program

however, may arise by operation of law. See the final paragraph of

section 11.  Moreover, distributors are subject to the limits on patent

assertion contained in the third paragraph of section 10.} 

We hope that this decision will result in fairly frequent licensing of

patent claims by contributors.  A contributor is charged with awareness

of the fact that it has modified a work and provided it to others; no

act of contribution should be treated as inadvertent.  Our rule also

requires no more work, for a contributor, than the weaker rule proposed

by the patent holders.  Under their rule, the contributor must always

compare the entire work against its patent portfolio to determine

whether the combination of the modifications with the remainder of the

work cause it to read on any of the contributor's patent claims.

We have made three changes to the definition of ``essential patent

claims'' in section 0.  This definition now serves exclusively to

identify the set of patent claims licensed by a contributor under the

first paragraph of section 11.

First, we have clarified when essential patent claims include

sublicensable claims that have been licensed to the contributor by a

third party.\footnote{This issue is typically handled in other free

software licenses having patent licensing provisions by use of the

unhelpful term ``licensable,'' which is either left undefined or is

given an ambiguous definition.}  Most commercial patent license

agreements that permit sublicensing do so under restrictive terms that

are inconsistent with the requirements of the GPL.  For example, some

patent licenses allow the patent licensee to sublicense but require

collection of royalties from any sublicensees.  The patent licensee

could not distribute a GPL-covered program and grant the recipient a

patent sublicense for the program without violating section 12 of

GPLv3.\footnote{Draft 3 provides a new example in section 12 that makes

this point clear.}  In rare cases, however, a conveying party can freely

grant patent sublicenses to downstream recipients without violating the

GPL.

Draft 3 now defines essential patent claims, for a given party, as a

subset of the claims ``owned or controlled'' by the party.  The

definition states that ``control includes the right to grant sublicenses

in a manner consistent with the requirements of this License.''

Therefore, in the case of a patent license that requires collection of

royalties from sublicensees, essential patent claims would not include

any claims sublicensable under that patent license, because sublicenses

to those claims could not be granted consistent with section 12.

Second, we now state that essential patent claims are those ``that would

be infringed by some manner, permitted by this License, of making,

using, or selling the work.'' This modified wording is intended to make

clear that a patent claim is ``essential'' if some mode of usage would

infringe that claim, even if there are other modes of usage that would

not infringe.

Third, we have clarified that essential patent claims ``do not include

modification of the work.''  That is to say, the set of essential patent

claims licensed under the first paragraph of section 11 is fixed by the

The downstream shielding provision of section 11 responds particularly

to the problem of exclusive deals between patent holders and

distributors, which threaten to distort the free software distribution

system in a manner adverse to developers and users. Draft 2 added a

source code availability option to this provision, as a specific

alternative to the general requirement to shield downstream users from

patent claims licensed to the distributor. A distributor conveying a

covered work knowingly relying on a patent license may comply with the

provision by ensuring that the Corresponding Source of the work is

publicly available, free of charge.  We retained the shielding option in

Draft 2 because we did not wish to impose a general requirement to make

source code available to all, which has never been a GPL condition.

The addition of the source code availability option was supported by the

free software vendors most likely to be affected by the downstream

shielding provision.  Enterprises that primarily use and occasionally

distribute free software, however, raised concerns regarding the

continued inclusion of a broadly-worded requirement to ``shield,'' which

appears to have been mistakenly read by those parties as creating an

obligation to indemnify.  To satisfy these concerns, in Draft 3 we have

replaced the option to shield with two specific alternatives to the

source code availability option. The distributor may comply by

disclaiming the patent license it has been granted for the conveyed

work, or by arranging to extend the patent license to downstream

recipients.\footnote{The latter option, if chosen, must be done ``in a

manner consistent with the requirements of this License''; for example,

it is unavailable if extension of the patent license would result in a

violation of section 12. Cf.~the discussion of sublicensable patent

claims in \S\ \ref{epc}.}  The GPL is intended to permit private

distribution as well as public distribution, and the addition of these

options ensures that this remains the case, even though we expect that

distributors in this situation will usually choose the source code

availability option.

Without altering its underlying logic, we have modified the phrasing of

the requirement to make clear that it is activated only if the

Corresponding Source is not already otherwise publicly available.  (Most

often it will, in fact, already be available on some network server

operated by a third party.)  Even if it is not already available, the

option to ``cause the Corresponding Source to be so available'' can then

be satisfied by verifying that a third party has acted to make it

available.  That is to say, the affected distributor need not itself

host the Corresponding Source to take advantage of the source code

availability option.  This subtlety may help the distributor avoid

certain peculiar assumptions of liability.

We have made two other changes to the downstream shielding provision.

The phrase ``knowingly rely'' was left undefined in our earlier drafts;

in Draft 3 we have provided a detailed definition.  We have also deleted

the condition precedent, added in Draft 2, that the relied-upon patent

license be one that is non-sublicensable and ``not generally available

to all''; this was imprecise in Draft 2 and is unnecessary in Draft

3. In nearly all cases in which the ``knowingly relying'' test is met,

the patent license will indeed not be sublicensable or generally

available to all on free terms.  If, on the other hand, the patent

license is generally available under terms consistent with the

requirements of the GPL, the distributor is automatically in compliance,

because the patent license has already been extended to all downstream

recipients.  If the patent license is sublicensable on GPL-consistent

terms, the distributor may choose to grant sublicenses to downstream

recipients instead of causing source code to be publicly available.  In

such a case, if the distributor is also a contributor, it will already

have granted a patent sublicense by operation of the first paragraph of

section 11,\footnote{See \S\ \ref{epc}.} and so it need not do anything

further to comply with the third paragraph.

% FIXME: This probably needs editing

One major goal for GPLv3 is to provide developers with additional protection

from being sued for patent infringement.  After much feedback and cooperation

from the committees, we are now proposing a patent license which closely

resembles those found in other free software licenses.  This will be more

comfortable for everyone in the free software community to use, without

creating undue burdens for distributors.

We have also added new terms to stop distributors from colluding with third

parties to offer selective patent protection, as Microsoft and Novell have

recently done.  The GPL is designed to ensure that all users receive the

same rights; arrangements that circumvent this make a mockery of free

software, and we must do everything in our power to stop them.

Our strategy has two parts.  First, any license that protects some

recipients of GPLed software must be extended to all recipients of the

software.  Second, we prohibit anyone who made such an agreement from

distributing software released under GPLv3.  We are still considering

whether or not this ban should apply when a deal was made before these

terms were written, and we look forward to community input on this issue.

The patent license grant of the first paragraph of section 11 no longer

applies to those who merely distribute works without modification. (We

explain why we made this change in the next subsection.) Such parties are

nonetheless subject to the conditions stated in section 10.  Unlike the

patent license, which establishes a defense for downstream users lasting for

as long as they remain in compliance with the GPL, the commitment not to sue

that arises under section 10 is one that the distributor can end, so long as

the distributor also ceases to distribute.  This is because a party who

initiates patent litigation in violation of section 10 risks termination of

its licensed permissions by the copyright holders of the work.

% FIXME: just brought in words here, needs rewriting.

is rooted in the basic principles of the GPL.

Our license has always stated that distributors may not impose further

restrictions on users' exercise of GPL rights.  To make the suggested

distinction between contribution and distribution is to allow a

distributor to demand patent royalties from a direct or indirect

recipient, based on claims embodied in the distributed code. This

undeniably burdens users with an additional legal restriction on their

rights, in violation of the license.

%FIXME: possible useful text, but maybe not.

In the covenant provided in the revised section 11, the set of claims

that a party undertakes not to assert against downstream users are that

party's ``essential patent claims'' in the work conveyed by the party.

``Essential patent claims,'' a new term defined in section 0, are simply

all claims ``that would be infringed by making, using, or selling the

work.''  We have abandoned the phrase ``reasonably contemplated use.''

This change makes the obligations of distributing patent holders more

predictable.

% FIXME:  probably needs a lot of work, these provisions changed over time.

GPLv3 adds a new section on licensing of patents. GPLv2 relies on an implied

patent license. The doctrine of implied license is one that is recognized

under United States patent law but may not be recognized in other

jurisdictions. We have therefore decided to make the patent license grant

explicit in GPLv3. Under section 11, a redistributor of a GPL'd work

automatically grants a nonexclusive, royalty-free and worldwide license for

any patent claims held by the redistributor, if those claims would be

infringed by the work or a reasonably contemplated use of the work.

% FIXME:  probably needs a lot of work, these provisions changed over time.

The patent license is granted both to recipients of the redistributed work

and to any other users who have received any version of the work. Section 11

therefore ensures that downstream users of GPL'd code and works derived from

GPL'd code are protected from the threat of patent infringement allegations

made by upstream distributors, regardless of which country's laws are held to

apply to any particular aspect of the distribution or licensing of the GPL'd

code.

% FIXME:  probably needs a lot of work, these provisions changed over time.

A redistributor of GPL'd code may benefit from a patent license that has been

granted by a third party, where the third party otherwise could bring a

patent infringement lawsuit against the redistributor based on the

distribution or other use of the code. In such a case, downstream users of

the redistributed code generally remain vulnerable to the applicable patent

claims of the third party. This threatens to defeat the purposes of the GPL,

for the third party could prevent any downstream users from exercising the

freedoms that the license seeks to guarantee.

% FIXME:  probably needs a lot of work, these provisions changed over time.

The second paragraph of section 11 addresses this problem by requiring the

redistributor to act to shield downstream users from these patent claims. The

requirement applies only to those redistributors who distribute knowingly

relying on a patent license. Many companies enter into blanket patent

cross-licensing agreements. With respect to some such agreements, it would

not be reasonable to expect a company to know that a particular patent

license covered by the agreement, but not specifically mentioned in it,

protects the company's distribution of GPL'd code.

% FIXME: does this still fit with the final retaliation provision?

This narrowly-targeted patent retaliation provision is the only form of

patent retaliation that GPLv3 imposes by its own force. We believe that it

strikes a proper balance between preserving the freedom of a user to run and

modify a program, and protecting the rights of other users to run, modify,

copy, and distribute code free from threats by patent holders. It is

particularly intended to discourage a GPL licensee from securing a patent

directed to unreleased modifications of GPL'd code and then suing the

original developers or others for making their own equivalent modifications.

Several other free software licenses include significantly broader patent

retaliation provisions. In our view, too little is known about the

consequences of these forms of patent retaliation. As we explain below,

section 7 permits distribution of a GPL'd work that includes added parts

covered by terms other than those of the GPL. Such terms may include certain

kinds of patent retaliation provisions that are broader than those of section

2.

% FIXME: should we mention Microsoft-Novell at all?

Section 7 of GPLv2 (now section 12 of GPLv3) has seen some success in

deterring conduct that would otherwise result in denial of full downstream

enjoyment of GPL rights.  Experience has shown us that more is necessary,

however, to ensure adequate community safety where companies act in concert

to heighten the anticompetitive use of patents that they hold or license.

Previous drafts of GPLv3 included a ``downstream shielding'' provision in

section 11, which we have further refined in Draft 3; it is now found in the

third paragraph of section 11.  In addition, Draft 3 introduces two new

provisions in section 11, located in the fourth and fifth paragraphs, that

address the problem of collusive extension of patent forbearance promises

that discriminate against particular classes of users and against the

exercise of particular freedoms. This problem has been made more acute by the

recent Microsoft/Novell deal.

We attack the Microsoft-Novell deal from two angles. First, in the sixth

paragraph of section 11, the draft says that if you arrange to provide patent

no matter how they get it. This means that the patent protection Microsoft

has extended to Novell's customers would be extended to everyone who uses any

software Novell distributes under GPLv3.

Second, in the seventh paragraph, the draft says that you are prohibited from

distributing software under GPLv3 if you make an agreement like the

Microsoft-Novell deal in the future. This will prevent other distributors

from trying to make other deals like it.

The main reason for this is tactical.  We believe we can do more to

protect the community by allowing Novell to use software under GPL

version 3 than by forbidding it to do so.  This is because of

Microsoft is scrambling to dispose of as many Novell SLES coupons as

possible prior to the adoption of GPLv3.  Unfortunately for Microsoft,

those coupons bear no expiration date, and paragraph 6 has no cut-off

date.  Through its ongoing distribution of coupons, Microsoft will

have procured the distribution of GPLv3-covered programs as soon as

they are included in Novell SLES distributions, thereby extending

patent defenses to all downstream recipients of that software by

operation of paragraph 6.

A secondary reason is to avoid affecting other kinds of agreements for

other kinds of activities.  We have tried to take care in paragraph 7

to distinguish pernicious deals of the Microsoft/Novell type from

business conduct that is not particularly harmful, but we cannot be

sure we have entirely succeeded.  There remains some risk that other

unchangeable past agreements could fall within its scope.

can structure the agreements so that they do not fall under paragraph

7.  However, it will block Microsoft and other patent aggressors from

further such attempts to subvert parts of our community.

A software patent forbids the use of a technique or algorithm, and its

existence is a threat to all software developers and users.  A patent

holder can use a patent to suppress any program which implements the

patented technique, even if thousands of other techniques are

implemented together with it.  Both free software and proprietary

software are threatened with death in this way.  

However, patents threaten free software with a fate worse than death: a

patent holder might also try to use the patent to impose restrictions on

use or distribution of a free program, such as to make users feel they

must pay for permission to use it.  This would effectively make it

proprietary software, exactly what the GPL is intended to prevent.

Novell and Microsoft have recently attempted a new way of using patents

against our community, which involves a narrow and discriminatory

promise by a patent holder not to sue customers of one particular

distributor of a GPL-covered program.  Such deals threaten our community

in several ways, each of which may be regarded as de facto

proprietization of the software.  If users are frightened into paying

that one distributor just to be safe from lawsuits, in effect they are

paying for permission to use the program.  They effectively deny even

these customers the full and safe exercise of some of the freedoms

granted by the GPL.  And they make disfavored free software developers

and distributors more vulnerable to attacks of patent aggression, by

dividing them from another part of our community, the commercial users

that might otherwise come to their defense.

We have added the fourth and fifth paragraphs of section 11 to combat

this threat.  This subsection briefly describes the operation of the new

provisions.  We follow it with a more detailed separate note on the

Microsoft/Novell patent deal, in which we provide an extensive rationale

for these measures.

As noted, one effect of the discriminatory patent promise is to divide

and isolate those who make free software from the commercial users to

whom the promise is extended.  This deprives the noncommercial

developers of the communal defensive measures against patents made

possible by the support of those commercial users.  The fourth paragraph

of section 11 operates to restore effective defenses to the targets of

patent aggression.

A patent holder becomes subject to the fourth paragraph of section 11

when it enters into a transaction or arrangement that involves two acts:

(1) conveying a GPLv3-covered work, and (2) offering to some, but not

all, of the work's eventual users a patent license for particular

activities using specific copies of the covered work.  This paragraph

only operates when the two triggering acts are part of a single

arrangement, because the patent license is part of the arrangement for

conveying, which requires copyright permission.  Under those conditions,

the discriminatory patent license is ``automatically extended to all

recipients of the covered work and works based on it.''

This provision establishes a defense to infringement allegations brought

by the patent holder against any users of the program who are not

covered by the discriminatory patent license.  That is to say, it gives

all recipients the benefit of the patent promise that the patent holder

extended only to some. The effect is to make contributing discriminatory

promises of patent safety to a GPL distribution essentially like

contributing code. In both cases, the operation of the GPL extends

license permission to everyone that receives a copy of the program.

The fourth paragraph of section 11 gives users a defense against patent

aggression brought by the party who made the discriminatory patent

promise that excluded them. By contrast, the fifth paragraph stops free

software vendors from contracting with patent holders to make

discriminatory patent promises.  In effect, the fifth paragraph extends

the principle of section 12 to situations involving collusion between a

patent holder and a distributor.

Under this provision, a distributor conveying a GPL-covered program may

not make an arrangement to get a discriminatory patent promise from a

third party for its customers, covering copies of the program (or

products that contain the program), if the arrangement requires the

distributor to make payment to the third party based on the extent of

its activity in conveying the program, and if the third party is itself

in the business of distributing software. Unlike the fourth paragraph,

which creates a legal defense for targets of patent aggression, the

consequence for violation of the fifth paragraph is termination of GPL

permissions for the distributor.

The business, technical, and patent cooperation agreement between

Microsoft and Novell announced in November 2006 has significantly

affected the development of Draft 3.  The fourth and fifth paragraphs of

section 11 embody our response to the sort of threat represented by the

Microsoft/Novell deal, and are designed to protect users from such

deals, and prevent or deter the making of such deals.

The details of the agreements entered into between Microsoft and Novell,

though subject to eventual public disclosure through the securities

regulation system, have not been fully disclosed to this

point.\footnote{Lawyers employed by the Software Freedom Law Center,

which is counsel to the Free Software Foundation and other relevant free

software clients, were accorded limited access to the terms of the deal

under a non-disclosure agreement between SFLC and Novell.  The reasons

for delay in the application of securities regulations requiring

publication of the relevant contracts are unrelated to the deal between

Microsoft and Novell.}  It is a matter of public knowledge, however,

that the arrangement calls for Novell to pay a portion of the future

gross revenue of one of its divisions to Microsoft, and that (as one

other feature of a complex arrangement) Microsoft has promised Novell's

customers not to bring patent infringement actions against certain

specific copies of Novell's SUSE ``Linux''\footnote{This is a GNU/Linux

distribution, and is properly called SUSE GNU/Linux Enterprise Server.}

Enterprise Server product for which Novell receives revenue from the

user, so long as the user does not make or distribute additional copies

of SLES.

The basic harm that such an agreement can do is to make the free

software subject to it effectively proprietary.  This result occurs to

the extent that users feel compelled, by the threat of the patent, to

get their copies in this way.  So far, the Microsoft/Novell deal does

not seem to have had this result, or at least not very much: users do

not seem to be choosing Novell for this reason.  But we cannot take for

granted that such threats will always fail to harm the community.  We

take the threat seriously, and we have decided to act to block such

threats, and to reduce their potential to do harm.  Such deals also

offer patent holders a crack through which to split the community.

Offering commercial users the chance to buy limited promises of patent

safety in effect invites each of them to make a separate peace with

patent aggressors, and abandon the rest of our community to its fate.

Microsoft has been restrained from patent aggression in the past by the

vocal opposition of its own enterprise customers, who now also use free

software systems to run critical applications.  Public statements by

Microsoft concerning supposed imminent patent infringement actions have

spurred resistance from users Microsoft cannot afford to alienate.  But

if Microsoft can gain royalties from commercial customers by assuring

them that \textit{their} copies of free software have patent licenses

through a deal between Microsoft and specific GNU/Linux vendors,

Microsoft would then be able to pressure each user individually, and

each distributor individually, to treat the software as proprietary.  If

enough users succumb, it might eventually gain a position to terrify

noncommercial developers into abandoning the software entirely.

Preventing these harms is the goal of the new provisions of section 11.

The fourth paragraph deals with the most acute danger posed by

discrimination among customers, by ensuring that any party who

distributes others' GPL-covered programs, and makes promises of patent

safety limited to some but not all recipients of copies of those

specific programs, automatically extends its promises of patent safety

to cover all recipients of all copies of the covered works.  This will

negate part of the harm of the Microsoft/Novell deal, for GPLv3-covered

software.

In addition to the present deal, however, GPLv3 must act to deter

similar future arrangements, and it cannot be assumed that all future

arrangements by Microsoft or other potential patent aggressors will

involve procuring the conveyance of the program by the party that grants

the discriminatory promises of patent safety.  Therefore, we need the

fifth paragraph as well, which is aimed at parties that play the Novell

role in a different range of possible deals.

Drafting this paragraph was difficult because it is necessary to

distinguish between pernicious agreements and other kinds of agreements

which do not have an acutely harmful effect, such as patent

contributions, insurances, customary cross-license promises to

customers, promises incident to ordinary asset transfers, and standard

settlement practices.  We believe that we have achieved this, but it is

hard to be sure, so we are considering making this paragraph apply only

to agreements signed in the future.  If we do that, companies would only

need to structure future agreements in accord with the fifth paragraph,

and would not face problems from past agreements that cannot be changed

now.  We are not yet convinced that this is necessary, and we plan to

ask for more comment on the question. This is why the date-based cutoff

is included in brackets. 

One drawback of this cutoff date is that it would ``let Novell off''

from part of the response to its deal with Microsoft. However, this may

not be a great drawback, because the fourth paragraph will apply to that

deal. We believe it is sufficient to ensure either the deal's voluntary

modification by Microsoft or its reduction to comparative harmlessness.

Novell expected to gain commercial advantage from its patent deal with

Microsoft; the effects of the fourth paragraph in undoing the harm of

that deal will necessarily be visited upon Novell.