PPI OPEN PATENT LICENSE
Version 0.1.10
WORK IN PROGRESS
DO NOT DISTRIBUTE
Copyright (C) 2003 Patents in the Public Interest, Inc.
2501 East Piedmont Road STE 246, Marietta, GA 3062-7755 USA
Everyone is permitted to copy and distribute verbatim copies of this license document, but changing it is not allowed.
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. As you can see, I tend to not be very succinct.
Intellectual property laws are normally established in order to promote progress, but they often work against that same goal.
Patents can be a greater impediment to progress than copyrights, because while copyrights do not in general prevent a reimplementation of a copyrighted work, patents prevent reimplementations of patented ideas.
However, it is usually unwise from a practical point of view for a organization attempting to be helpful to freely license its patents to all who might request it. If the organization spent more in making the discovery and procuring an individual patent that it would gain by licensing it freely to all comers, it is unlikely that such licensing would take place. It would furthermore lose a great protection that retaining the patent could provide: Possible protection against patent infringement lawsuits from another organization.
If a another organization claims that the first is infringing on its patents, and especially if the converse is true as well, the two organizations can possibly sovle the problem by agreeing to cross-license sets of their patents for each other's use. By having first built a large patent portfolio, each organization has partially protected itself from patent infringement lawsuits, by building the ability to cross-licensing with other organizations when necessary.
Unfortunately, this seemingly-defensive strategy can backfire: as more organizations find it necessary to build large patent portfolios, the likelyhood of any one of them to be infringing another's patent increases. (This problem is especially severe for the case of software patents, and impacts a far greater number of individuals and organizations.)
A game theory approach shows another general problem: Even if an organization has sucessfully cross-licensed a subset of its patents, it may believe it to be in its interest to not cross license some other subset of these patents it considers more valuable. From the point of view of game theory, this would mean that the organization has decided it would be in its best interest to defect. Unfortunately, over the long term, this defection will often simply turn out to be a suboptimal strategy.
As more organizations adopt the defection strategy, they will quickly run into the initial problem again, in which they find the need to pay each other royalties, cross-license another set of their patents, or both, and each cycle increases costs. Even if cooperation had been the optimal strategy the entire time, the true costs of all these defections is masked, as are the benefits that would have been accrued had there been cooperation all along. Thus the players are trapped in a Prisoner's Dilemma in which they continue to perceive an advantage in defecting to a suboptimal strategy.
Over the long term cooperation is discouraged and defection is encouraged, because cooperation seems more expensive than it actually is, and defection seems cheaper than it actually is.
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.
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.
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.
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, 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.
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.
| Class | Subclass |
|---|---|
| ... | ... |
Patent-like intellectual properties include:
Patent-like intellectual properties do not include:
Incoporates Patent-Like Intellectual Properties and Look & Feel Intellectual Properties.
| # | When agreeing to this license under this numbered option, the organization is licensing in perpetuity: | Into these Open Patent Pools: | Afterwards, IP from this pool # may be incorporated into and distributed in: | ||
|---|---|---|---|---|---|
| 1 | Specified Patents and PLIPs | 1------ | Any Open Source work. | ||
| 2 | Specified Patents and all PLIPs | 123456- | 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. | 3 | Specified Patents and PLIPs | 1-3456- |
| 4 | All Software Patents | 1--456- | |||
| All PLIPs | 1-3456 | ||||
| Specified Patents | 1--456- | ||||
| 5 | All Software Patents | 1--456- | |||
| All PLIPs | 1-3456- | ||||
| Specified Patents | 1---56- | ||||
| All Patents that are: | More than this many years from the date of invention: | As of: | 1---56- | ||
| 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 | ||||
| 6 | All Software Patents | 1--456- | |||
| All PLIPs | 1-3456- | ||||
| All Patents | 1----6- | ||||
| 7 | Specified Patents and PLIPs | 1234567 | Any work. | ||
"________________ 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
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 4, 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 4. 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 4.
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.
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 1, 2, 3, 4, 5, 6, and 7.
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.
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 January 1, 2000, 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.
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.
To use patents or PLIPs from pools from this license, the product must document the patents and PLIPs in a file named PATENTS.INC: ***Maybe these aren't the best filenames. Also, 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***
This product may incorporate any of the following
Look and Feel Instruments (including APIs):
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.
Documenting that a patent or PLIP is incorporated into a product as being 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.
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 3, 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 3, and then the work was modified to incorporate a product containing a patent only available from Open Patent Pool 1, 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 3. (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:
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:
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.
(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 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.)
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.
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.
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: