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From: Alexander Terekhov (terekhov_at_[hidden])
Date: 2003-06-30 03:15:13

Fernando Cacciola wrote:
> > > > > Motivated by A. Terekhov concerns, I think the license should, if at all
> > > > > possible, expressely PROHIBIT anyone, including the copyright holder,
> > > > > from patenting the covered Software and any implied intellectual production.
> > > >
> > > > That would make no sense.
> > > >
> > > Why?
> >
> > Because a patent protects against the unauthorized manufacture,
> > use, sale... {subset of} rights that *ARE GRANTED* by a license
> > {subject to whatever requirements} we're discussing here.
> >
> I don't understand.
> Isn't the license and its copyright notice itself which protects those rights?
> If we only seek to retain the copyright notice which each _copy_, as required by the
> license, do we _need_ a patent? I think not.
> AFAICT, a patent gives you far more rights than those expressed in the copyright
> notice, and in particular, gives you right to _control_ the use of the covered subject by,
> for example, requiring a royalty for each use of it. This is far more than what we
> really need, isn't it?

Copyrights protect expressions of ideas. Patents protect "ideas".
I guess, it's reasonable to expect that copyrights will end up
"protecting" things forever -- law makers constantly extend the
"deadline". The protection period for patents is rather limited
(vs copyrights). Patent rights are "negative" -- the patent owner
can "exclude others". The patent owner himself may not be able to
practice the invention if it's subject to other patents needed to
practice the invention. <quote> Sometimes one patent blocks
practicing (making or using) a second patent, while that second
patent blocks practicing the first patent. In that case, neither
patent owner can practice his invention until the other patent
expires, and so it is likely that the two patent owners will
cross-license their patents, giving each the ability to practice
their patents. </quote>

> Maybe you saw nonsense in disallowing the boost developers ourselves
> to issue a pantent on our own software. Well, the intention is to reduce
> loopholes: without this provision, I might be forced to prove that I am
> the orginal developer (names are far from unique).

You aren't really forced to "prove" anything. Committers aside, that
is the problem (risk) of the Recipient. For example, the CPL states:

"c) Recipient understands that although each Contributor grants
 the licenses to its Contributions set forth herein, no assurances
 are provided by any Contributor that the Program does not infringe
 the patent or other intellectual property rights of any other
 entity. Each Contributor disclaims any liability to Recipient for
 claims brought by any other entity based on infringement of
 intellectual property rights or otherwise. As a condition to
 exercising the rights and licenses granted hereunder, each
 Recipient hereby assumes sole responsibility to secure any other
 intellectual property rights needed, if any. For example, if a
 third party patent license is required to allow Recipient to
 distribute the Program, it is Recipient's responsibility to
 acquire that license before distributing the Program.

 d) Each Contributor represents that to its knowledge it has
 sufficient copyright rights in its Contribution, if any, to grant
 the copyright license set forth in this Agreement. "



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