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You are right that you might be able to claim "open source" while still requiring a patent licence under the letter of the 'open source'. However that would definitly go against the spirit of "open source" and it would not be viewed by anyone as actually open source at all.

"Free Software" vs "Open Source" would not be relevant here, since both FS and OS would view this "you-still-need-a-patent-licence" clause as incompatible with FS & OS.

There are a few bits in the new GPLv3 that say "if you release under GPLv3 then you have to give everyone a patent licence". However I don't know how that works if you don't have a full patent licenceā€¦

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