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Apache license

Posted by Anonymous . updated on 2/26/2009
I would be interested in experienced interpretations of the Apache license at:

More specifically the section focused on patents:

3. Grant of Patent License. Subject to the terms and conditions of this License, each Contributor hereby grants to You a perpetual, worldwide, non-exclusive, no-charge, royalty-free, irrevocable (except as stated in this section) patent license to make, have made, use, offer to sell, sell, import, and otherwise transfer the Work, where such license applies only to those patent claims licensable by such Contributor that are necessarily infringed by their Contribution(s) alone or by combination of their Contribution(s) with the Work to which such Contribution(s) was submitted. If You institute patent litigation against any entity (including a cross-claim or counterclaim in a lawsuit) alleging that the Work or a Contribution incorporated within the Work constitutes direct or contributory patent infringement, then any patent licenses granted to You under this License for that Work shall terminate as of the date such litigation is filed.

What I find hard to distinguish from this license is how this may affect someone from selling software that is derived from an Apache project (and covered by this license) but the software includes enhancements that are covered by a patent.  In other words, make an enhancement/addition to  Apache where that enhancement is covered by a patent - can it be sold commercially or is one forgoing the patent rights?
Answers (1)
I know this is a month old, but I've been busy....

Being a fan of open source software (OSS) and a patent attorney practicing in computer technology with emphasis on software, I thought I should say a little something....

I think the answer depends and who owns the patent in your question.  Mods (modifications, not apache modules) to apache wouldn't be sold -- I assume the apache license is similar to most OSS licenses in this respect and requires that you give your mods to the apache group and that you don't restrict others in the use or modification of apache, including your modifications.  I may be mistating things, I believe you'd give your mods away freely.

The gist of the clause, as I understand it, is that you agree not to sue anyone for infringement of any of your patents regarding any aspect of apache -- in exchange for using apache.  Of course, nothing in the license stops others for suing apache users for patent infringement.  I don't see that the clause stops you from suing anyone for patent infringement arising out of use of any other software product (explicitly limts itself to "the Work" and "a Contribution.").

For what it's worth, no OSS contributor has ever been sued for patent infringement.  Ever.  A few large, corporate Linux distributors were sued over copyrights, but I think that failed.

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