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PPI OPEN PATENT LICENSE
Version 0.1.11
(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.
1. Preamble
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.
- Patents can Impede Progress
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.
- The aquisition of Patents for defensive purposes can protect
an organization from lawsuits
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.
- Goals of this license
- Encourage cooperation with a system that
enables a more honest cost-benefit analysis
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.
- Benefit yourself and those more generous than yourself
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.
- Promote the development of Open Source code
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.
- Retain defensive benefits of Patent Portfolios
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, provide an option
to license patents without restriction
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.
- Cover legal instruments that act in ways similar
to patents
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.
2. Definitions
- OPL
- Open Patent License. (This license.)
- PPI
- Patents in the Public Interest.
- Owner
- Includes any person or organization that has a right
to sublicense the intellectual property in question.
- Software Patent
- If a change in program code, whether executable or
source code, affects whether the program's or device's operation will
infringe a patent, then for the purpose of this license,
that patent is considered a Software Patent. A patent
is also considered a Software Patent under the terms
of this license if it is specifically defined to be so
by the owner when placing the patent into any OPL
patent pool.
- Business method patents also fall under the definition
of software patents, as do banking and financial services
patents.
- Genetic information is considered to be program code.
- All process patents will also fall under the definition
of software patents as of January 1, 2015.
-
***Should the following be completed or deleted?
Adding in an extensive list of patent classes/subclasses
may end up detracting from the license by making in more
confusing. Are the above definitions straightforward and
clear enough? What's worse, could saying that patents in
certain classes are always considered software patents
open some sort of loophole, where patents could be applied
for intentionally misclassified?***
- In addition, patents that are or would be catagorized in
the following international patent catogorazation catagories
and subcatagories are also considered to be software patents:
- Non-software Patent
- All patents that do not fall under the definition of a
"Software Patent" given above are considered Non-software
Patents under the terms if this license, as are patents
additionally defined to be non-software patents by the
owner placing them into any of the OPL pools.
- Note that a Patent might be both a Software Patent
and a non-Software patent.
- The person or organization submitting a patent
under any of the Options of this license may not
prevent a patent from additionally being considered
a Software Patent.
- GPL
- Refers to the Free Software Foundation's "General Public License",
version 2.0 or any later version.
- Open Source Definition
- Refers to the Open Source Definition as defined by Open Source, Inc.
- Open Source
- A license that has been certified as being Open Source, by having
been "OSI-Certified" by Open Source, Inc.
- Describes software distributed under and Open Source license only.
- Applicable Patents
- Refers to other patents incorporated into the software or device
in question, if:
- Those patents are currently judged by a court of law
to be infringed upon by this software or device, or
- Those patents are licensed to be used in this software
or device.
A mere unsubstantiated claim that the software or device
infringes a patent does not cause the patent to fall
under the definition of an "applicable patent."
- Use
- All references to a licensed right to "use" a patent
shall refer to the full rights to "make", "use",
or "sell" that patent.
- Look & Feel Intellectual Property
- Any legal instrument protecting a look and feel to an interface,
such as:
- Trade Dress protections for software;
- user-interface patents;
- user-interface copyrights;
- Copyrights on Programming Interfaces; and
- Copyrights on Database Schemas.
The structure, format, and command structure used in any
of the above are included in this definition, but not the rights
to any specific binary or source code implementation.
- Patent-Like Intellectual Property
- Any legal instrument other than a patent that effectively
restricts the use of an invention or idea in a similar way
that patents do.
Patent-like intellectual properties include:
-
Any non-patent legal instrument protecting a look and feel to a software
interface;
-
Trade Dress protections for software;
-
User-interface copyrights;
-
Copyrights on Programming interfaces;
-
Copyrights on Database Schemas.
-
Copyrights on Databases.
-
Any restrictions on rights to read, use, and relay information
learned from examining
existing works that are available to the general public. This
includes any restrictions on reverse engineering, or restrictions
on making use of information gained thereby.
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.
(Note that there is some overlap between Patent-Like and
Look & Feel Intellectual Properties.)
Patent-like intellectual properties do not include:
-
Full rights to the specific code used in a specific implementation
of a look and feel to a software interface, programming interface,
user interface, or full rights to the specific code that is being read
or reverse engineered.
-
Limitations placed on use of knowledge that can be gained only by
agreeing to a non-disclosure agreement while the information is
still a trade secret and cannot be discovered or derived through
products or information potentially or actually available to the
general public.
- PLIPs
- Patent-Like and Look & Feel Intellectual Properties.
Incoporates Patent-Like Intellectual Properties and Look & Feel
Intellectual Properties.
3. Submitting patents and PLIPs
- General
The following table summarizes how organizations can agree to and
submit Patents and PLIPS under the OPL Options, as well as summarizing
under what conditions Patents and PLIPs available in the Open Patent
Pools may be used:
On January 25, I renamed Option and Pool 1 to Option and Pool F,
and shifted Options and Pools 23456 down to 12345.
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 |
| All PLIPs |
--2345F |
| Specified Patents |
---345F |
| 4 |
All Software Patents |
---345F |
| All PLIPs |
--2345F |
| Specified Patents |
----45F |
| All Patents that are: |
More than this many years from the date of invention: |
As of: |
----45F |
| 10 |
2005-Jan-01 |
| 5 |
2010-Jan-01 |
| 2 |
2014-Jan-01 |
| 1 |
2018-Jan-01 |
| 0.5 |
2025-Jan-01 |
| 0 |
2030-Jan-01 |
| 5 |
All Software Patents |
---345F |
| All PLIPs |
--2345F |
| All Patents |
-----5F |
| 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:
|
| 0 |
012345F. |
| 1 |
-12345F. |
2 |
--2345F. |
| 3 |
---345F. |
| 4 |
----45F. |
| 5 |
-----5F. |
| F |
------F. |
| 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 |
| --2345- |
All PLIPs |
--2345F. |
| ---345- |
All Software Patents |
--2345F. |
| ----45- |
All Patents that are: |
More than this many years from the date of invention: |
As of: |
----45F. |
| 10 |
2005-Jan-01 |
| 5 |
2010-Jan-01 |
| 2 |
2014-Jan-01 |
| 1 |
2018-Jan-01 |
| 0.5 |
2025-Jan-01 |
| 0 |
2030-Jan-01 |
| -----5- |
All Patents |
-----5F. |
| 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 |
| 0 |
- |
anyone. |
| 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.
|
| 2 |
| 3 |
| 4 |
| 5 |
| 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. |
- Specifics
- Organizations must agree to these conditions by having
an authorized person certify the following:
"________________ 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
- Definition of "all"
The term "all" in the middle column of the second table
refers to the entire set of described intellectual property that
is either owned by the organization, or that is not owned
but still licensable by the organization.
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.
- Agreements are hierarchically downward-binding.
If an organization agrees to the OPL at any option level,
that agreement is of course binding on itself. The
agreement is also binding on any organization that
is owned by a controlling interest of owners agreeing
to that option level. (In other words, you cannot evade the
requirements of the Option levels by intentionally
or otherwise colluding to own an organization not
bound by the options.) Organizations agree to vote
in shareholders meetings for owned organizations to
formally certify that they agree to the license at
the same Option level.
- Pool F only grants rights for Open Source use
The right to use patents and PLIPs from Open Patent Pool F
is only granted for a work when two conditions are satisfied:
- if the work is distributed, used, and remains
distributable 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.
- if there is no valid limitation on incorporating and
distributing any Patents or PLIPs that were incorporated
into this work into any other work licensed, distributed,
and used under the terms and conditions of the same
Open Source License. (If all other valid Patents and
PLIPs are available from Open Patent Pool F, then this
condition is automatically satisfied.)
- This license does not intend to grant validity to any form of
intellectual property
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.
- Freely licensed Patents or PLIPs considered to be in
all Open Patent Pools
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.
- Limitations on submitting and removing patents and PLIPs
- Waiting Period
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.
- Removals after waiting period not allowed
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.
- Special exception on removal after waiting period
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.
- Further Limitations Disallowed
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.
4. Using Patents and PLIPs from the Open Patent Pools
- Documentation requirements
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.
- Works incorporated versus works aggregated
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.
- Software components
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.
- Non-Software components
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.)
5. Additional Costs
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.
6. Interpretation 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.
- License still valid even when superfluous
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.
- Joint and Sever-ability
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.
7. Future Changes
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.
Last Modified on
November 01 2000 19:24:10 UTC
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