Difference between revisions of "Implicit patent licence"
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| − | + | An '''implicit patent licence''' is a licence (grant of permission) created by the actions or words of an entity distributing software. Even if there is no licence explicitly saying you have the right to perform the ideas described in a patent, it is possible that the act of giving you the software included an implied promise not to sue you for using said software. | |
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==Dan Ravicher's explanation== | ==Dan Ravicher's explanation== | ||
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Unless the parties provide otherwise, '''the purchaser of a patented article has an implied license not only to use and sell it, but also to repair it to enable it to function properly'''. This '''implied license covers''' both the original purchaser of the article and '''all subsequent purchasers'''. | Unless the parties provide otherwise, '''the purchaser of a patented article has an implied license not only to use and sell it, but also to repair it to enable it to function properly'''. This '''implied license covers''' both the original purchaser of the article and '''all subsequent purchasers'''. | ||
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| + | ==In free software licences== | ||
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| + | "''Explicit''" patent grants can be found in many [[free software licences]] such as the Apache-2, MPL-2, and GPLv'''3'''. People who receive software under those licences cannot be sued for infringing the necessary patents of the distributor and thus do not have to examine the existence of an implied licence. | ||
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| + | Other free software licences, such as GPLv'''2''' and MIT/X11, contain no patent grant, which leaves the question of whether a distributor can later sue the user for using the supplied software. It seems that, in the USA at least, the act of giving someone [[free software]] (i.e. giving them the software plus the freedoms to use, modify and redistribute) would create an implication that the distributor promises not to sue the recipient for exercising the given freedoms. | ||
==Related pages on {{SITENAME}}== | ==Related pages on {{SITENAME}}== | ||
Revision as of 21:31, 14 December 2014
An implicit patent licence is a licence (grant of permission) created by the actions or words of an entity distributing software. Even if there is no licence explicitly saying you have the right to perform the ideas described in a patent, it is possible that the act of giving you the software included an implied promise not to sue you for using said software.
Contents
Dan Ravicher's explanation
In 2005, Dan Ravicher explained[1] that, in the USA, recipients of software under the GNU GPL version 2 receive an implicied patent grant, based on the following US case law.
(Emphasis added by Dan.)
- De Forest Radio, 273 U.S. 236 (1927)
No formal granting of a license is necessar y in order to give it effect. Any language used by the owner of the patent, or any conduct on his part exhibited to another from which that other may properly infer that the owner consents to his use of the patent in making or using it, or selling it, upon which the o ther acts, constitutes a license.”
- Hewlett - Packard Co. v . Repeat - O-Type Stencil Mfg. Corp. , Inc., 123 F. 3d 1445 (Fed. Cir. 1997).
Generally, when a seller sells a product without restriction, it in effect promises the purchaser that in exchange for the price paid, it will not interfere wit h the purchaser's full enjoyment of the product purchased. The buyer has an implied license under any patents of the seller that dominate the product or any uses of the product to which the parties might reasonably contemplate the product will be put.
- Bottom Line Mgmt., Inc. v. Pan Man, Inc., 228 F. 3d 1352 (Fed. Cir. 2000)
Unless the parties provide otherwise, the purchaser of a patented article has an implied license not only to use and sell it, but also to repair it to enable it to function properly. This implied license covers both the original purchaser of the article and all subsequent purchasers.
In free software licences
"Explicit" patent grants can be found in many free software licences such as the Apache-2, MPL-2, and GPLv3. People who receive software under those licences cannot be sued for infringing the necessary patents of the distributor and thus do not have to examine the existence of an implied licence.
Other free software licences, such as GPLv2 and MIT/X11, contain no patent grant, which leaves the question of whether a distributor can later sue the user for using the supplied software. It seems that, in the USA at least, the act of giving someone free software (i.e. giving them the software plus the freedoms to use, modify and redistribute) would create an implication that the distributor promises not to sue the recipient for exercising the given freedoms.
