OpenPatents.org: OPL version 0.1.10

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.

Patents can Impede Progress

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.

The aquisition of Patents for defensive purposes can protect an organization from lawsuits

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.

Limited cross-licensing does not completely solve the problem.

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.

Limited cross-licensing results in a distorted cost-benefit analysis

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.

Goals of this license

Encourage cooperation with a system that enables a more honest cost-benefit analysis

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.

Benefit yourself and those more generous than yourself

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.

Promote the development of Open Source code

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.

Retain defensive benefits of Patent Portfolios

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, provide an option to license patents without restriction

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.

Cover legal instruments that act in ways similar to patents

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.

2. Definitions

OPL

Open Patent License. (This license.)

PPI

Patents in the Public Interest.

Owner

Includes any person or organization that has a right to sublicense the intellectual property in question.

Software Patent

If a change in program code, whether executable or source code, affects whether the program's operation will infringe a patent, then for the purpose of this license, that patent is considered a Software Patent. A patent is also considered a Software Patent under the terms of this license if it is specifically defined to be so by the owner when placing the patent into any OPL patent pool.

Business method patents also fall under the definition of software patents.

Genetic information is considered to be program code.

All process patents will also fall under the definition of software patents as of January 1, 2015.

***Should the following be completed or deleted? Adding in an extensive list of patent classes/subclasses may end up detracting from the license by making in more confusing. Are the above definitions straightforward and clear enough?***

In addition, patents that are or would be catagorized in the following international patent catogorazation catagories and subcatagories are also considered to be software patents:

Class	Subclass
...	...

Non-software Patent

All patents that do not fall under the definition of a "Software Patent" given above are considered Non-software Patents under the terms if this license, as are patents additionally defined to be non-software patents by the owner placing them into any of the OPL pools.

Note that a Patent might be both a Software Patent and a non-Software patent.

The person or organization submitting a patent under any of the Options of this license may not prevent a patent from additionally being considered a Software Patent.

GPL

Refers to the Free Software Foundation's "General Public License", version 2.0 or any later version.

Open Source Definition

Refers to the Open Source Definition as defined by Open Source, Inc. ***OSI, SPI, both? Difficult to avoid messy politics here***

Open Source

A license that has been certified as being Open Source, by having been "OSI-Certified" by Open Source, Inc.

Describes software distributed under and Open Source license only.

Applicable Patents

Refers to other patents incorporated into the software or device in question, if:

Those patents are currently judged by a court of law to be infringed upon by this software or device, or
Those patents are licensed to be used in this software or device.

A mere unsubstantiated claim that the software or device infringes a patent does not cause the patent to fall under the definition of an "applicable patent."

Use

All references to a licensed right to "use" a patent shall refer to the full rights to "make", "use", or "sell" that patent.

Look & Feel Intellectual Property

Any legal instrument protecting a look and feel to an interface, such as:

Trade Dress protections for software;
user-interface patents;
user-interface copyrights;
Copyrights on Programming Interfaces; and
Copyrights on Database Schemas.

The structure, format, and command structure used in any of the above are included in this definition, but not the rights to any specific binary or source code implementation.

Patent-Like Intellectual Property

Any legal instrument other than a patent that effectively restricts the use of an invention or idea in a similar way that patents do.

Patent-like intellectual properties include:

Any non-patent legal instrument protecting a look and feel to a software interface;
Trade Dress protections for software;
User-interface copyrights;
Copyrights on Programming interfaces;
Copyrights on Database Schemas.
Copyrights on Databases.
Any restrictions on rights to read, use, and relay information learned from examining existing works that are available to the general public, (as especially opposed to restrictions on reverse engineering, or making use of, or distributing information gained from such activity)

(Note that there is some overlap between Patent-Like and Look & Feel Intellectual Properties.)

Patent-like intellectual properties do not include:

Full rights to the specific code used in a specific implementation of a look and feel to a software interface, programming interface, user interface, or full rights to the specific code that is being read or reverse engineered.
Limitations placed on use of knowledge that can be gained only by agreeing to a non-disclosure agreement while the information is still a trade secret and cannot be discovered or derived through products or information potentially or actually available to the general public.

PLIPs

Patent-Like and Look & Feel Intellectual Properties.

Incoporates Patent-Like Intellectual Properties and Look & Feel Intellectual Properties.

3. Submitting patents and PLIPs

General

#	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.

Specifics

Organizations must agree to these conditions by having an authorized person certify the following:

"________________ 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

Definition of "all"

Pool 1 only grants rights for Open Source use

This license does not intend to grant validity to any form of intellectual property

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.

Freely licensed Patents or PLIPs considered to be in all Open Patent Pools

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.

Limitations on submitting and removing patents and PLIPs

Waiting Period

Removals after waiting period not allowed

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.

Special exception on removal after waiting period

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.

Further Limitations Disallowed

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.

4. Using Patents and PLIPs from the Open Patent Pools

Documentation requirements

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 patents:

This product may incorporate any of the following Look and Feel Instruments (including APIs):

Licensors are prohibited from restricting the use of patents submitted under this license further than the restrictions defined under the terms and conditions of the license itself. While licensors are prohibited from requiring extra documentation, they are not prohibited from requesting it. If a licensee wishes to include the requested succinct, ASCII documentation, they can do so in the "patent: description" format.

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.

Works incorporated versus works aggregated

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:

If you do not have a right to do something yourself, that means that you also cannot give others the right to do the same thing. So if you cannot use a patent under the terms and conditions of this license, it is not possible for you to allow yourself or others to use the patent by somehow incorporating it into a some other product, even if you could otherwise make, use, distribute, and sell that other product.
The limitation is utterly necessary to this license. Without it, this license would be entirely meaningless, as anyone would be able to trivially bypass the intent of this license by incorporating patents covered by the license with those not covered by the license in the same device, leaving an entirely unbalanced situation where those who so generously donated their licenses to the Open Patent pools would not be able to freely use the non-covered patents, while the converse would be untrue.

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:

To not make, use, distribute, or sell this work.
To redesign the work such that the relevant licenses no longer conflict.
To license the needed rights such that the licenses are compatible.
To pay the holder of the rights to license the relevant patents and PLIPs under this license such that they are available from the Open Patent Pools the consolidator requires. (Although this may allow the consolidator to make, use, distribute, or sell the work as far as the terms of this license are concerned, there may be additional licensing considerations outside the scope of this license. For instance, a license to incorporate copyrighted software in the work may be required.)

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.

Software components

Non-Software components

To be considered an "aggregate component", the component must also be expected to be user-replaceable, both under a "reasonable person" definition as well as in all all product claims and documentation for the device. (For instance, both the batteries and the light bulb in a common flashlight would be considered a separate work.)
Any claim by an organization making, distributing, or selling the work that the product warranty of the work (even after the warranty would otherwise have expired) would be invalidated if this hardware component were replaced by the end user, would cause this component to be considered a part of the work as a whole for the purposes of this license for this organization and those down the supply chain, when the work is made, used, distributed, or sold by this organization or any organization up the supply chain. The component may yet be considered an aggregate component by other organizations.
(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 a hardware component to be considered an aggregate work, the hardware component must be one that both would be available and would be expected to be available for retail purchase by an end-user.

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.)

5. Additional Costs

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.

7. Interpretation of this agreement

Interpretations in case of ambiguity or contradictions

License still valid even when superfluous

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.

Joint and Sever-ability

8. Future Changes

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:

Need something here so company can't cheat with subsidiaries/group-owned public companies.
The license along with its pools and options may be renamed and renumbered.
The licensed may be modified for internationalization purposes as long as the modification doesn't effectively change the requirements for current licensors or licensees. (This license is assumed to be valid everwhere. But if, for instance, it is found to be not valid in one country merely because the certification statement is missing key wording, the license will be updated to require the missing wording, and it the previous statements will be retroactively assumed to have contained the missing wording. The justification for the retroactive change is that the licensors had intended to license their patent without that geographic restriction, so the removal of that restriction doesn't change their intentions.)
Patent pools are well-understood legally. Trade-dress and user-interface pools are not quite as common. Future versions of this license will likely detail more specifically of how trade dress, user interface copyrights, and other PLIPs must be licensed under the Open Patent License.
It may be the case that this license is not flexable enough in its current form to handle special cases of some industries. The license may be modified to add more Options, Levels, and Pools to accommodate special cases. The addition of these special cases will not reduce the patents available in any of the existing pools. However, because these additions will have their own terms and conditions, time limits, and testing periods, the additions to the existing pools from these special cases may not be permanent. During the time that any newly-added special-case additions to existing pools are still in a temporary state, the license will have wording to that effect.

Last Modified on January 17 2003 12:57:41 UTC
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