PPI OPEN PATENT LICENSE
WORK IN PROGRESS
DO NOT DISTRIBUTE
Copyright (C) 1999 Patents in the Public Interest, Inc.
1384 Lakeside Way NE #107, Atlanta, GA 30319-2068 USA
Everyone is permitted to copy and distribute verbatim copies of this license document, but changing it is not allowed.
***Modeled on GPL, needs extensive editing***
Software patents are generally considered to be destructive to progress; but to stay competitive, companies often find it necessary to make use of them nonetheless—for cross-licensing purposes if nothing else. But as more parties try to protect themselves by amassing software patents, more software patent licenses become necessary in order to create any product, whether this product is made by a commercial institution, an academic institution, an ad hoc collection of individuals, or a single individual.
The standard way around this problem with patents in general is the creation of patent pools in which the players have licenses to use the pooled patents under specified conditions. However, usually participation is severely limited.
This limited solution still doesn't solve the problem. All the players are still trapped in a Prisoner's Dilemma, in which they may perceive an advantage in defecting to a suboptimal strategy.
For information on game theory and the Prisoner's Dilemma, see ***Add reference***.
For instance, companies may find that they require patents to protect themselves from others. (Repeating here.) They can then use some of those patents to successfully enter cross-licensing agreements, seemingly solving the problem, but then if for whatever reason they perceive a temporary advantage in defecting from cooperation by not cross-licensing some of the patents, this triggers other parties' entrance into the same Prisoner's Dilemma, creating the need for more cross-licensing and the need for more patents to cross-license with. Everyone involved might well be better off cooperating to begin with, but everyone perceives advantages in individually defecting in certain cases. Unfortunately, the costs of all the hidden defections along the way are masked, as are the benefits that would have been accrued had there been cooperation by all the parties all along.
Thus, cooperation seems more expensive than it actually is, and defection seems cheaper than it actually is. In this way, over the long term cooperation is discouraged and defection is encouraged.
One of the design goals of the Open Patent License is to encourage cooperation. Another design goal is a vague notion that it would generally be a good thing if, when submitting patents to the Open Patent Pools created by this license, that you would be benefitting yourself as well as anyone as generous or more generous than yourself.
In this way the game theory payoff matrices can be biased towards cooperation.
The hope is to design a system that shows when it is in the interests of everyone (licensor, licensees, and end users) to cooperate, and in those cases make such cooperation as easy and cost-free as possible. As a whole, it is assumed that open cooperation in the furtherence of scientific progress will be to the benefit of practically everyone.
In the case where one party decides to defect, (not join the license, or join using more limited Options), the costs of defection are not hidden, nor are the benefits of cooperation, giving an honest portrayal of relevant costs and benefits, this licenses' admitted bias towards scientific progress notwithstanding.
In order for this license to be the most useful to the greatest number of people, there are also options that will likely to be found useful by organizations wishing to license or cross-license their software and non-software patents.
There is a strong likelihood that some of the problems that make software patents so objectionable will slowly start to apply to non-software patents as manufacturing times and costs lower. If there were a certain device that now requires millions of dollars to design, tens of millions to build a manufacturing facility for, and then hundreds of dollars to manufacture per piece, but in a few years costs only a few minutes work with a total cost of only few cents for an individual to design and then create a single copy in some sort of automated assembly device, then to prevent a party from cheaply making and using improvements and refinements of that design, and to prevent the cheap manufacture of that device by effectively causing the licensing costs to become the dominant factor in the total cost of the device, would vastly slow progress and be to hardly anyone's benefit.
As time goes on and manufacturing times and costs drop, this will become more of an issue, as the full impact of the problem increases for both organizations and individuals. There are options allowing an organization to license non-software patents after a sliding-scale time period has occurred.
For completeness, this license also allows an organization to choose to openly license their patents with no restrictions on anyone. Noting that in the past there have been cases where organizations have in fact done this (one of the best examples being Volvo licensing their 3-point seat belt / air bag (?) patents in ???? ***find reference*** in the interest of saving lives), this license would be incomplete if it didn't contain terms under which an organization could do so.
Lastly, because legal instruments restricting the look-and-feel of software products have a similar restraining effect on progress, these look-and-feel instruments can also be submitted and used under this license.
There are other legal instruments that effectively act similarly to patents. These legal instruments can also be submitted and used under this license.
Patent-like intellectual properties include, but are not limited to:
Patent-like intellectual properties do not include:
Incoporates Patent-Like Intellectual Properties and Look & Feel Intellectual Properties.
The following table won't be in the final license, but I've put it here to help sort out what the Options mean. (Note that it's not really readable in lynx.)
|Option||Covers IP submitted||Into Pools||Specifics|
|1||Specific Patents and PLIPS, for Open Source use only||1------|
|2||Specific Patents and PLIPS||123456-|
|3||Specific Patents and all PLIPS.||1-2345-|
|4||All software patents and all PLIPs.||1--456-||All Software patents|
|5||All software patents, specific non-software patents, remaining non-software-patents under time-release, and all PLIPs.||1--456-||All Software Patents|
|1---56-||All Patents, but time-released|
|6||All Patents and all Plips.||1----6-|
|7||Specific Patents and Plips, sharing not required.||1234567||Specified Patents and PLIPS, but with no sharing requirement on use.|
"I hereby license in perpetuity the following patents and PLIPs under the terms and conditions of the Open Patent License, Option 1: < list of patents and PLIPs>"
When this is done, the specified patents and PLIPs become available under the terms and conditions of the Open Patent License, Pool 1.
"I hereby license in perpetuity the following patents and PLIPs under the terms and conditions of the Open Patent License, Option 2: < list of patents and PLIPs>"
When this is done, the specified patents and PLIPs become available under the terms and conditions of the Open Patent License, Pools 1, 2, 3, 4, 5, and 6.
"I hereby license in perpetuity the following patents and all PLIPs owned by (Organization) under the terms and conditions of the Open Patent License, Option 3: < list of patents>"
When this is done, the specified patents and all the organization's PLIPs become available under the terms and conditions of the Open Patent License, Pools 1, 3, 4, 5, and 6.
"I hereby license in perpetuity all Software Patents and all PLIPs owned by (organization) under the terms and conditions of the Open Patent License Option 4."
When this is done, all Software Patents owned by the organization become available under the terms and conditions of the Open Patent License, Pools 1, 4, 5, and 6.
When this is done, all PLIPs owned by the organization become available under the terms and conditions of the Open Patent License, Pools 1, 3, 4, 5, and 6.
"I hereby license in perpetuity all software Patents and all PLIPs owned by (organization) under the terms and conditions of the Open Patent License Option 5. In addition, the scheduling delay inherent in Option 5 for non-software patents is hereby waived for the following patents: < list of patents>"
When this is done,
"I hereby license in perpetuity all Patents and all PLIPs owned by (organization) under the terms and conditions of the Open Patent License Option 6."
When this is done,
a) All Software Patents owned by the organization become available under the terms and conditions of the Open Patent License Pools 1, 4, 5, and 6.
b) All PLIPs owned by the organization become available under the terms and conditions of the Open Patent License Pools 1, 3, 4, 5, and 6.
c) all remaining patents owned by the organization become available under the terms and conditions of the Open Patent License Pool 1 and 6.
"I hereby license in perpetuity the following patents and PLIPs under the terms and conditions of the Open Patent License, Option 7: < list of patents>"
When this is done, the specified patents and PLIPs become available under the terms and conditions of the Open Patent License, Pools 1, 2, 3, 4, 5, 6, and 7. For the purposes of this license, any other patent or PLIP that has been been licensed in perpetuity royalty-free, with no additional disclaimers, limitations, or conditions attached, is also considered to be in the Open Patent License Pools 1, 2, 3, 4, 5, 6, and 7.
However, this license does not attempt to impose agreements about patents for ideas and discoveries not yet made. Organizations can remove themselves from the terms and conditions of any Option of this license, ridding themselves of any benefits or obligations associated with agreeing to this license, except for the previously-mentioned limitation that once Patents have been placed or have been promised to be placed in any of the Patent Pools defined in this license by the invocation of any of the Options of this license, these Patents may not be removed from their respective Pools.
The purpose for the inclusion of this special exception is to allow companies to enter into this agreement "safely" during a time in which the full ramifications of doing so may be unclear. It is assumed that by January 1, 2000, not only will enough companies have entered the license in one form or another to make it clear what advantages accrue upon entering, but by then the agreement will be depended upon to the extent that the action of one company entering and leaving this agreement and thus taking all their patents (promised and actual) with them, could be disastrous to others who might have based their research or business plans on these patents that were made available, or promised to be made available.
This exception is a compromise between the uncertainty many will feel upon entering into this agreement when it is first available to the public, and the damage many will feel if others are free to utterly defect from the agreement after things stabilize.
However, as described elsewhere, the licensor can specify a name and short description to be used in documenting non-patent PLIPs that have been submitted under the terms and conditions of this license. How, when, and whether this is to be done may be changed in future versions of this license.
Note that the right to use the patents in this pool is only granted for a work while that work is distributed and used under an Open Source license. This would, for instance, always be the case for a work distributed under the GPL, (an Open Source license), as the specifics of the GPL require that other works incorporating any part of the GPL work also be distributed under the GPL. It would not be the case, for instance, for a work that incorporated parts of an LGPL work (another Open Source license) if the "work as a whole" were used or distributed under a license that did not conform to the Open Source definition. It would not be the case for a work that was once distributed under the BSD license when later distributed under a different license. It would not be the case for a work once released as public domain and later incorporated into a proprietary work distributed under a license that does not conform to the Open Source definition.
To use patents or PLIPs from pools from this license, the product must document the patents and PLIPs in a file named PATENTS.INC: ***Maybe these aren't the best filenames. Also, what really needs to be required here? Try to make sure older product revisions with incorrect documentation can still be manufactured/downloaded. Extensive review needed here***
This product may incorporate any of the following
Look and Feel Instruments (including APIs):
This product may incorporate any of the following
Look and Feel Instruments (including APIs):
Organizations claiming and licensing their PLIPs may specify the name and descriptions to be used in listing the PLIPs. Both the name and descriptions must be writable in ASCII, and be succinct.
Future versions of this license may change the documentation requirements for PLIPs.
As it is in the best interest of all concerned that patents submitted to the pools are well-documented and their use is well-known and well-understood, with any suggested extra documentation on the patents easily found, it is requested not only that copies of the certification statement for any Options a licenser may invoke be sent to Patents in the Public Interest, Inc., but that any extra requests for documentation by users of the patents and PLIPs be sent as well. This is not a guarantee that these requests will be honored or further distributed.
Documenting that a patent or PLIP is incorporated into a product as being applicable, shall not be taken to imply that the licensee considers the applicable patent or PLIP considers the patent to be valid or legally enforcable in any way.
This means that a work cannot be distributed under this license if it incorporates a patent or PLIP that could not be distributed under this license under the same terms and conditions as the rest of this work.
For instance, if a work could be distributed under the terms and conditions of Open Patent Pool 3, and then the work was modified to incorporate a product containing a patent not licensed under this license, then the work in question, this work as a whole, cannot be made, distributed, sold, or used under the terms and conditions of this license.
Or, if a work could be distributed under the terms and conditions of Open Patent Pool 3, and then the work was modified to incorporate a product containing a patent only available from Open Patent Pool 1, then the work in question, this work as a whole, cannot be made, distributed, sold, or used under the terms and conditions of Open Patent Pool 3. (Although it is possible, depending on the circumstances, that it could be distributed under the terms and conditions of Open Patent Pool 1.)
The reverse is also true: A component whose patents are only licensed under this license cannot be incorporated into a product that itself could not be made, used, or sold under the terms and conditions of this license.
The reasons for this limitation are quite simple:
The limitation leads to an interesting dilemma. Someone might build a work out of parts for which he may individually have the right to make, use, distribute, or sell, but may yet be unable to make, use, distribute, or sell the work as a whole. The choices this "consolidator" has in this situation are:
This leads to the question as to whether a set of components, taken as a whole, create a work as a whole, or an aggregate work.
(For instance, if a company makes a work and claims that this component is not user-replaceable, the component is part of the work as a whole no matter who sells it. However, if only one distributor makes that claim, then this clause will only have the effect of making this work sold through this one distributor being considered a work as a whole, assuming the work would not have been considered part of the work as a whole for other reasons.)
For instance, A battery powering an Open Patent radio should be considered an aggregate work, unless the battery wouldn't be expected to be regularly changed by the user over the life of the radio. Plugging a PCI card into a motherboard should be considered creating an aggregate work if it doesn't void any warranties. However, a d/a converter added into a circuit board should be considered part of the work as a whole.)
This license does not impose any additional cost on the owner of a patent in order to place a patent or set of patents into the OPL Patent Pools using any of the available Options, other than the requirement to meet the terms and conditions of this license.
There is no cost imposed on using any patents from any Open Patent Pool created under this license, other than the requirement to meet the terms and conditions of this license.
Although there is technically no payment required to use this license, if parts of the license come under legal attack, or for other reasons interested parties find it beneficial to pool resources to strengthen the legal position of this license, they are not prevented from doing so. However, such payment will not gain payers any advantages over non-payers under the terms and conditions of this license. (Cooperation is assumed to be advantageous, but it is not enforced.)
Additionally, there is no restriction imposed by this license on one party paying another to license patents under any option of this agreement.
This agreement remains in effect even if parts of it temporarily or permanently become superfluous. For instance, if software patents are ruled invalid in one country, the agreement still holds there and elsewhere.
Example: If, for instance, software patents happened to be ruled invalid for a period of 5 years in this one country, after which they were again ruled valid, for that period of 5 years in which no one needed to invoke any part of this agreement in order to be able to make, use, or sell software containing a temporarily-defunct software patent in that country, the agreement could still be used in other countries, and could become important again in this example country if software patents were again held to be valid at the end of that 5 years.
Patents in the Public Interest may revise the Open Patent License from time to time. Newer versions of the license thus created will be similar in spirit to the present version, but may differ in detail to address new problems or concerns. Completed new revisions will superceede previous revisions, and the newer revisions will be binding on all parties. ***Need good preamble to make "similar" well-defined.***
Each version is given a distinguishing three-part version number, such as 1.2.5. Revisions while in progress will be given odd middle numbers. These works-in-progress shall not be binding in any way. Completed revisions will be given even numbers, and they then become binding.
(Note: The three part version scheme was not chosen because frequent revisions are expected--quite the contrary, revisions are expected to occur very rarely. Rather this numbering scheme was chosen both because of its practical advantages it affords in allowing discussion and examination of changes, while (in this case) minimizing confusion of official, completed revisions with proposals and works-in-progress.)
In addition, PPI may edit the license in the following ways: