Scope of AL-2 patent grant

[Ciarán O'Riordan <ci...@member.fsf.org>]

Hi all,

I know grant scope is an old topic.  I've spent about 6 hours reading
the legal-discuss archives from 2005 and 2008, but my question might be
simple...

If I have an encryption patent which is infringed by an AL-2 licensed
project FOO (for simplicity, it is not an ASF project), and I contribute
some unrelated memory management code to FOO, do the users then have a
licence to use my encryption patent?

Here's the first half of AL-2 section 3:

    each Contributor hereby grants to You a perpetual, worldwide,
    non-exclusive, no-charge, royalty-free, irrevocable (except as
    stated in this section) patent license to make, have made, use,
    offer to sell, sell, import, and otherwise transfer the Work,
    where such license applies only to those patent claims licensable
    by such Contributor that are necessarily infringed by their
    Contribution(s) alone or by combination of their Contribution(s)
    with the Work to which such Contribution(s) was submitted.

So, the resulting patent licence will apply to the whole Work (line 4).
Great.  And what is granted (which claims) in this patent licence?
Lines 6-8: the claims infringed by my Contribution (irrelevant here),
and the claims infringed by combination of my Contribution with the
Work.

Is that the sum of the claims infringed by my contribution plus by the
existing Work?

Or is it the claims which are infringed *because* my contribution was
added?  I.e. the claims infringed by my contribution, and the claims
infringed partly by my contribution (but not claims which are infringed
by parts of the Work unrelated to my contribution).

I'm beginning to think the answer is obvious, but I just wanted
confirmation.


Thanks.
-- 
Ciarán O'Riordan
+32 (0) 485 118 029

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Re: Scope of AL-2 patent grant

[Marvin Humphrey <ma...@rectangular.com>]

On Fri, May 25, 2012 at 1:04 PM, Ciarán O'Riordan <ci...@member.fsf.org> wrote:
>
>> I believe that this is addressed in the FAQ:
>>     http://www.apache.org/foundation/license-faq.html#PatentScope
>
> That's not about the Apache License.  Those four questions discuss
> something called Apache's Grant of Patent License, which I guess is
> section 3 of this:
> http://www.apache.org/licenses/cla-corporate.txt

It's also section 3 of the Apache License version 2.0.

    http://www.apache.org/licenses/LICENSE-2.0.txt

    3. Grant of Patent License. Subject to the terms and conditions [...]

Marvin Humphrey

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Re: Scope of AL-2 patent grant

[Marvin Humphrey <ma...@rectangular.com>]

On Fri, May 25, 2012 at 8:19 AM, Ciarán O'Riordan <ci...@member.fsf.org> wrote:
> If I have an encryption patent which is infringed by an AL-2 licensed
> project FOO (for simplicity, it is not an ASF project), and I contribute
> some unrelated memory management code to FOO, do the users then have a
> licence to use my encryption patent?

I believe that this is addressed in the FAQ:

    http://www.apache.org/foundation/license-faq.html#PatentScope

    Q3:
        If I own or control a licensable patent and contribute code to a
        specific Apache product, which of my patent claims are subject to
        Apache's Grant of Patent License?
    A3:
        The only patent claims that are licensed to the ASF are those you own
        or have the right to license that read on your contribution or on the
        combination of your contribution with the specific Apache product to
        which you contributed as it existed at the time of your contribution.
        No additional patent claims become licensed as a result of subsequent
        combinations of your contribution with any other software. Note,
        however, that licensable patent claims include those that you acquire
        in the future, as long as they read on your original contribution as
        made at the original time. Once a patent claim is subject to Apache's
        Grant of Patent License, it is licensed under the terms of that Grant
        to the ASF and to recipients of any software distributed by the ASF
        for any Apache software product whatsoever.

> Here's the first half of AL-2 section 3:

I think for a specific interpretation of the language in the license, it would
be best to talk to a lawyer.  In general, we try to avoid translating legalese
to lay terms.

HTH,

Marvin Humphrey

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