PPI OPEN PATENT LICENSE
(Note: Online edits to this version number still being made.)
WORK IN PROGRESS
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. I'd like to retain a preamble that describes the background and goals of the license. I welcome suggestions on how better to put it together. (Putting the preamble into an outline form doesn't seem such a great idea anymore.)
I am changing the Preamble and moving parts around, which is why it currently may look a bit choppy.
Intellectual property laws are normally established in order to promote progress, but they often work against that same goal.
Patents especially can significantly impede progress--they can prevent the use of reimplementations of patented ideas, whereas copyrights generally do not prevent reimplementation of a copyrighted work. This license attempts to address the problems caused by patents and intellectual properties that act similarly to patents.
An organization holding patents may in fact not wish to wield its granted monopoly power destructively. Unfortunately, it would normally be unwise from a practical point of view for such an organization to attempt to help matters by, say, freely licensing all its patents to all who might request it: One reason organizations often attempt to acquire patents is so they can be used defensively--If the organization is accused of infringing the patents of a competitor, this organization can use its patent portfolio to negotiate a cross-licensing agreement with its would-be agressors. A patent portfolio can be of invaluable use in defending an organization against those using patents offensively. It is unreasonable to expect an organization to throw away such a valuable tool. (Although for completeness the license does allow for such a thing.)
Instead, participants to the Open Patent License will not only keep the defensive benefits of their own patents, but will in a sense gain the defensive benefits of the portfolios formed by each Open Patent Pool the license provides them access to, as well as the use of those patents, under the terms and conditions of the license.
The license basically allows cooperating participants to "opt-out" of different types of Patent and Patent-like intellectual property monopolies, by abanonding their monopoly powers over all those who similarly abandon theirs. The specifics of how this is done are detailed in the main body of the license.
One of the goals of this license is to encourage cooperation by designing 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.
In this way the game theory payoff matrices can be biased towards cooperation, towards antimonopolistic strategies, and towards the promotion of scientific progress. As a whole, it is assumed that open cooperation in the furtherence of scientific progress will be to the benefit of practically everyone.
However, in cases in which 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.
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.
Lastly, this license has as a design goal the encouragement of Open Source development. Licensing a patent for use in Open Source code means that the licensor will be able to use and distribute this code, (according to and while under the terms and conditions of the Open Source license.) Noting that the licensor will benefit from the contribution, and that a refusal to license Patents in this way will hinder the development and proliferation of Open Source code, intellectual property submitted under this license will be availble for use in Open Source code.
An organization does not lose the defensive benefits of its patent portfolio merely because it submitted patents under any of the Options from this license. Except for the case of Open Source software, competing organizations cannot mix their own unlicensed patents with Open Patent licensed patents in the same work. (The case of Open Source software is an exception, because the nature of Open Source licenses is such that a competitor would gain no unfair advantage in doing so--any other organization could by definition use, modify, and distribute the work.)
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. This license covers the licensing of those legal instruments as well.
Patent-like intellectual properties include:
I've been told this is a bit confusing and probably needs rewording--I mean to say that people joining at Options where they must submit all PLIPs have limits on their ability to restrict reverse engineering of their products (not to imply such a restriction is valid to begin with), but it's been pointed out to me that the above wording seems to imply the opposite. I'll be rewording this part to fix that.
Patent-like intellectual properties do not include:
Incoporates Patent-Like Intellectual Properties and Look & Feel Intellectual Properties.
Also, I broke out the one table into three to make things less confusing. Here is the original table:
|Table to be deleted (?)|
|#||When agreeing to this license under this numbered option, the organization is licensing in perpetuity:||Into these Open Patent Pools:||IP from this pool # may be incorporated into and distributed in:|
|0||Specified Patents and PLIPs||012345F||Any work.|
|1||Specified Patents and PLIPs||-12345F||Any work in which all applicable and valid intellectual property licensable under this license, (patents and PLIPs), that would require a license to incorporate and distribute in the work, are available from this pool number, but only when all remaining intellectual property requiring a license to incorporate and distribute in the work is owned by, or licensed for use in this work by, an organization agreeing to the terms and conditions of the Open Patent license and the terms and conditions of this Option number.||2||Specified Patents and all PLIPs||--2345F|
|3||All Software Patents||---345F|
|4||All Software Patents||---345F|
|All Patents that are:||More than this many years from the date of invention:||As of:||----45F|
|5||All Software Patents||---345F|
|F||Specified Patents and PLIPs||------F||Any Open Source work.|
And here is the new and improved, easier-to-read (?) set of three tables:
|Submitting Patents and PLIPs places them into Open Patent Pools.|
|Submitting patents and PLIPs under Option||places them into Open Patent Pools:|
|Agreeing to some Options automatically places entire classes of Patents and PLIPs into Open Patent Pools|
|Option(s)||also place(s)||into this entire set of Open Patent Pools|
|---345-||All Software Patents||--2345F.|
|----45-||All Patents that are:||More than this many years from the date of invention:||As of:||----45F.|
|IP from a Pool can only be used under the terms and conditions associated with that Pool.|
|Patents and PLIPs from Pool||may be incorporated into and distributed in any work||by|
|1||in which all applicable and valid intellectual properties licensable under this license, (patents and PLIPs), that would require a license to incorporate and distribute in the work, are available from this pool||anyone agreeing to the terms and conditions of the Open Patent License and the Option of the same name as this pool.|
|F||distributable under an Open Source license, and for which all incorporated Patents and PLIPS are either licensed under Option F of this license or can be used under the terms of the Open Source license the work is distributable under, or both||anyone.|
"________________ hereby certifies that <Organization>:
Agrees to the terms and conditions of Patents in the Public Interest's Open Patent License, and the terms and conditions of Option ___ therein.
Agrees to submit all <Organization's> intellectual property that would be automatically licensed under Option ___, as well as the following Patents and PLIPS, to be licensed in perpetuity under the terms and conditions of the Open Patent License and Option ___ therein.
Name, office (if applicable), and date
Intellectual property of a organization that is in turn owned by a parent organization is also considered to be owned by that parent organization if all the organization's owners that agree to the same Option level own a controlling interest in the child organization, and if agreeing to this license under that Option level would mean the intellectual property would be scheduled to be licensed in any of the OPL Pools.
This license does not intend to add validity to invalid forms of intellectual property. Invalid forms of intellectual property being used in a work are not to be considered in decisions as to whether all Patents and PLIPs incorporated into a work are available in the specified pools.
For instance, at the time of this license was written, user interface copyrights are not considered valid. So if a work incorporates a claimed user interface copyright that was not added to any of the Open Patent pools, and also incorporates three patents that are available in Open Patent Pool 3, the claimed existence of the user interface copyright will not prevent the work from being licensable under the terms and conditions of the Open Patent License Pool 3. Were the legalaties to change such that user-interface copyrights were valid, then the work in question could not be licensed under the terms and conditions of the Open Patent License Pool 3.
In cases such as the above, if the invalid intellectual property were later determined to be valid, the terms and conditions of the relavant Open Patent Pool will be considered to have been met while the licensee could have reasonably considered in good faith that the intellectual property was valid.
As to the converse, if IP that could have been presumed to be valid is later found to be invalid, this license will consider it to have been invalid all along.
Any patent or PLIP that has been been licensed in perpetuity royalty-free, with no additional disclaimers, limitations, or conditions attached, is considered to be in the Open Patent License Pools 0, 1, 2, 3, 4, 5, and F.
Patents and PLIPs will not be available for use under this license until 10 calendar days after their certification statement has been made. The organization may withdraw the statement within that time. If the certification statement is withdrawn, then it will have had no affect on the licensing of patents covered under this license.
After the 10 day waiting period, any patent or PLIP placed, or any patent scheduled to be placed into any particular pool may not be withdrawn from this license. The certification statement serves as a promise in perpetuity that the patents and PLIPs in question will always be available for use under the conditions this license, or for some patents in the case of Option 5, that they will become available in perpetuity after a defined delay after the date of invention. Removal or planned removal of patches placed, or certified to be placed, into any of these Open Patent Pools, is not allowed. For instance, Patents which have an invention date during the time Option 5 was in force will be available for use under the terms and conditions of Open Patent Pool 5, even if the patent was applied-for or granted after the organization withdrew from Option 5.
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.
Should this be more than 3 months? As a special exception to the previous section, until three months after revision 1.0.0 of this license is released, organizations have the singular option to withdraw utterly and completely from this agreement, withdrawing their previously-licensed patents as well as any future patents that would have become available under this license.
The patents and other covered IP may still be used in existing products and versions of products for one month after the organization has withdrawn from the agreement.
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 this time 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.
The licenser may not add any additional disclaimers, limitations, or conditions to the certification statements for each Option. If any additional limitations or conditions are added to the certified statement, (other than the specification of the organization, the Option chosen, the list of patents, the credentials of the authorized person and/or other proof that the certification is genuine), then that statement is invalid with respect to this license. Such an invalid statement is to be ignored under the terms and conditions of this license; it will be understood not to affect the licensing of the patents in question in any manner whatsoever.
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.
Products incorporating patents or PLIPs under the terms and conditions of this license may include a verbatim copy of this license in a file named PATENTS.LIC.
To use patents or PLIPs from pools from this license, the product must document the patents and PLIPs in a file named PATENTS: ***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***
The patents in this product are licensed under the PPI Open Patent License version 0.1.11, Pools
as found at http://www.openpatents.org/license/versions/opl-0.1.11-table.php .
This product may incorporate any of the following patents:
<LIST OF PATENT AND POOL NUMBERS>
Required format should include iso country code, patent, expiration date (?), description (?), OPL revision, OPL Pools.
This product may incorporate any of the following PLIPs:
<LIST OF PLIPS: DESCRIPTIONS>
Licensors are prohibited from restricting the use of patents submitted under this license further than the restrictions defined under the terms and conditions of the license itself. While licensors are prohibited from requiring extra documentation, they are not prohibited from requesting it. If a licensee wishes to include the requested succinct, ASCII documentation, they can do so in the "patent: description" format.
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.
Documentation that a patent or PLIP is incorporated into a product or that it is 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 part starts out sort of okay, then gets more difficult to read by the time it starts talking about non-software compontents. It may be that the whole section should be redone from scratch.
Even when incorporating other products into the work, the distribution, making, selling and use of the work as a whole must still meet the terms and conditions of this license. That is, for an organization to make, use, or sell the work, all of the patents and PLIPs incorporated into the work must, as a set, be usable under the terms and conditions of one or more of the Open Patent Pools defined under this license.
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 2, 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 2, and then the work was modified to incorporate a product containing a patent only available from Open Patent Pool F, 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 2. (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:
If you do not have a right to do something yourself, that means that you also cannot give others the right to do the same thing. So if you cannot use a patent under the terms and conditions of this license, it is not possible for you to allow yourself or others to use the patent by somehow incorporating it into a some other product, even if you could otherwise make, use, distribute, and sell that other product.
The limitation is utterly necessary to this license. Without it, this license would be entirely meaningless, as anyone would be able to trivially bypass the intent of this license by incorporating patents covered by the license with those not covered by the license in the same device, leaving an entirely unbalanced situation where those who so generously donated their licenses to the Open Patent pools would not be able to freely use the non-covered patents, while the converse would be untrue.
One practical result of this is that it is quite possible, even likely, that a particular product available for retail sale, in which the applicable patents and PLIPs are licensed under this license, cannot be combined with another product available for retail sale, because the combination of the two products patents and PLIPs cannot as a set be made, used, distributed, or sold under the terms and conditions of any of the Open Patent Pools of this license.
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:
To not make, use, distribute, or sell this work.
To redesign the work such that the relevant licenses no longer conflict.
To license the needed rights such that the licenses are compatible.
To pay the holder of the rights to license the relevant patents and PLIPs under this license such that they are available from the Open Patent Pools the consolidator requires. (Although this may allow the consolidator to make, use, distribute, or sell the work as far as the terms of this license are concerned, there may be additional licensing considerations outside the scope of this license. For instance, a license to incorporate copyrighted software in the work may be required.)
However, an aggregate collection of works need not all similarly comply to this license do be made, used, distributed, or sold, as long as each work in the aggregate could otherwise be made, used, distributed, or sold, and the collection genuinely can be considered to be an aggregate work.
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 software components, the determination of whether a component work is defined as part of the work-as-a-whole will be made by determining if it would be judged a part of the work as a whole under the GNU GPL.
For non-software components, the GPL-based determination will also apply, as much as is practicable, with the following additional requirements:
To be considered an "aggregate component", the component must also be expected to be user-replaceable, both under a "reasonable person" definition as well as in all all product claims and documentation for the device. (For instance, both the batteries and the light bulb in a common flashlight would be considered a separate work and user-replaceable.)
Any claim by an organization making, distributing, or selling the work that the product warranty of the work (even after the warranty would otherwise have expired) would be invalidated if this hardware component were replaced by the end user, would cause this component to be considered a part of the work as a whole for the purposes of this license for this organization and those down the supply chain, when the work is made, used, distributed, or sold by this organization or any organization up the supply chain. The component may yet be considered an aggregate component by other organizations.
(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 a hardware component to be considered an aggregate work, the hardware component must be one that both would be available and would be expected to be available for retail purchase by an end-user.
The goal here is to prevent the possibility of a patent not available for use from a particular Open Patent Pool being "smuggled into" another device in a way so as to bypass the intent of this license by allowing the work as a whole to be distributed under that Open Patent Pool. However, system integrators should be able to put together aggregate systems if end-users could do the same under the terms and conditions of this license.
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.)
I've been convinced to change the funding model so that there is a small cost to submit IP under the license at least under Options other than Option F.
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.
Interpretations in case of ambiguity or contradictions Any ambiguity or contradiction in this agreement shall be interpreted in the way most in accordance with the general spirit of the license. Any remaining ambiguity or contradiction shall then be interpreted in accordance with the principle that each party submitting intellectual property benefits anyone using the property in Open Source code, as well as benefiting anyone submitting their contributions in a manner as generous and more generous than themselves.
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.
If any portion of this section is held invalid or unenforceable under any particular circumstance, the balance of the section is intended to apply and the section as a whole is intended to apply in other circumstances.
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:
Need something here so company can't cheat with subsidiaries/group-owned public companies.
The license along with its pools and options may be renamed and renumbered.
The licensed may be modified for internationalization purposes as long as the modification doesn't effectively change the requirements for current licensors or licensees. (This license is assumed to be valid everwhere. But if, for instance, it is found to be not valid in one country merely because the certification statement is missing key wording, the license will be updated to require the missing wording, and it the previous statements will be retroactively assumed to have contained the missing wording. The justification for the retroactive change is that the licensors had intended to license their patent without that geographic restriction, so the removal of that restriction doesn't change their intentions.)
The license may be otherwise modified, with the changes effective after 1 month, if the changes are not objected to by patent licensors as measured by a proxy of 5% of submitted patents.
Patent pools are well-understood legally. Trade-dress and user-interface pools are not quite as common. Future versions of this license will likely detail more specifically of how trade dress, user interface copyrights, and other PLIPs must be licensed under the Open Patent License.
It may be the case that this license is not flexable enough in its current form to handle special cases of some industries. The license may be modified to add more Options, Levels, and Pools to accommodate special cases. The addition of these special cases will not reduce the patents available in any of the existing pools. However, because these additions will have their own terms and conditions, time limits, and testing periods, the additions to the existing pools from these special cases may not be permanent. During the time that any newly-added special-case additions to existing pools are still in a temporary state, the license will have wording to that effect.