
Patent Exhaustion and Open Source - fanf2
https://lwn.net/SubscriberLink/780078/2d222693108e12e7/
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VanL
Hi, I'm the author of this talk. A couple quick notes:

First, the source materials I relied on are available at
<[https://github.com/google/opencasebook/blob/master/patents.m...](https://github.com/google/opencasebook/blob/master/patents.md>).
If you are interested, please read them.

Second, about Bowman v. Monsanto. The logic of Bowman is a pretty serious
challenge to what I presented above. It might invalidate certain parts of my
argument. Specifically, the question is whether it is even theoretically
possible to exhaust the exclusive right to "make" a patented item.

I haven't yet been able to go back and do further research. But what I would
be looking for is a case where someone sold an item - like a software
application - with a license that says, "make as many copies as you want for
internal use." If the buyer then transferred the software, would the new buyer
get the right to make copies? I'm not sure. But if so, that would be evidence
that a sale could exhaust the right to make.

Third, I thought this was a fun rabbit hole - and, as I said in my talk, a
"surprising" result. The surprising bit is important. It is entirely possible
- and even likely - that a court could agree with all the precedents I cited,
and "distinguish" them to come to a contrary, non-surprising result.

In short, I think exhaustion is more important than people may be considering,
but don't take this analysis to the bank.

~~~
codetrotter
Your link is broken due to the brackets you put around it.

Unbroken:
[https://github.com/google/opencasebook/blob/master/patents.m...](https://github.com/google/opencasebook/blob/master/patents.md)

~~~
chrismorgan
(Which, I may add, is very disappointing since <> was _expressly designed_ as
delimiters to safely contain a link in emails and other plain-text formats,
and has always been well-supported as such by other systems.)

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chomp
I had the opportunity to hear Van give a talk of his at OSCON last year. His
talks are very interesting (he is a former sofware developer, now a patent
attorney) and if anyone sees him on a conference schedule, I really encourage
them to go have a listen.

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paulsutter
The talk seems to conflate distribution of source code and software licensing.
Sometimes code is published for inspection but a license must still be
purchased. It would be helpful if the discussion isolated rights that are
passed on by possession of the source code vs possession of license rights.

~~~
AstralStorm
Code published for inspection needs a specialized license where it disallows
any sublicensing or redistribution to close patent exhaustion. Albeit the
interesting part is that it could be contrived as a business relationship
still in some cases, causing patent exhaustion for the specific bodies allowed
to inspect it. That would be for the court to decide though.

Allowing redistribution or sublicense right pretty clearly invokes software
patent exhaustion.

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gumby
I don’t understand the Microsoft/Github bit.

Is pushing your repo to github “distribution” that exhausts a patent? And what
has Microsoft to do wit it?

~~~
est31
I think the idea is that any code you distribute as a company falls under that
patent exhaustion clause. Microsoft distributes the code that someone uploaded
to GitHub to all users of GitHub. Thus they all get patent licenses for any
patents involving that code. That's at least the idea. Whether courts will go
with it, I doubt, because it would mean that any company that allows people to
upload anything, including comment sections, is under the risk that their
patents get exhausted.

~~~
AstralStorm
Not exactly get licenses, but the licensing requirement is voided for code
distributed in such a way.

That is, suppose Startup Inc. published code related to software patent on
GitHub owned by GitHub Inc., to which it has granted license. This means
anyone who downloads the code from there, no matter the license, has no
licensing requirement (not the same as grant or getting a license).

If the code is published under a license that does not specifically exclude a
patent grant, it is also patent exhausted. (Of course, if the license
prohibits redistribution, GitHub cannot host it for the public.)

~~~
gumby
This would only apply to MS patents used by _github_ right?

That is, if MS had a patent on, say, making a bird whistle, just uploading a
program to GitHub wouldn't give you a license to it. While if MS had a patent
on, say, putting line numbers when displaying source code, anybody who
uploaded a program to GH that did so would be able to use the technique in the
patent?

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jorangreef
Would this almost certainly apply to all users (commercial and non-commercial)
of AES-OCB in OpenSSL, seeing as OpenSSL already has a license from Phillip
Rogaway?

[https://en.wikipedia.org/wiki/OCB_mode#Patents](https://en.wikipedia.org/wiki/OCB_mode#Patents)

