Noel J. Bergman wrote:
Jennifer,
If You institute patent litigation against any entity (including a
cross-claim or counterclaim in a lawsuit) alleging that a
Contribution and/or the Work, without modification (other than
modifications that are Contribution(s)), constitutes direct or
contributory patent infringement, then any patent licenses granted
to You under this License for that Contribution or such Work shall
terminate as of the date such litigation is filed.
It seems to me that there are (at least) two situations:
1) COMPANY uses SOFTWARE and HAS PATENT. COMPANY
has not contributed any code that involves
PATENT. Some other PARTY contributes CODE that
infringes on PATENT, and so COMPANY sues PARTY
for patent infringement.
In this scenario, because COMPANY (the end-user of the SOFTWARE) has
instituted patent litigation against PARTY alleging that a Contribution
constitutes patent infringement, any patent licenses granted to COMPANY
under the License for the CODE making up that Contribution (by PARTY or
otherwise) are terminated.
2) COMPANY uses SOFTWARE and HAS PATENT. COMPANY
contributes CODE that involves PATENT, and
subsequently sues based upon CODE.
These facts don't provide enough information to determine the outcome of
the scenario. COMPANY appears to be suing an unknown entity for patent
infringement based on its own Contribution. To the extent that you are
concerned that COMPANY's suit would mean the outright removal of
COMPANY's PATENT from the License, that would not be the case here
because the defensive termination language only affects patent licenses
granted to the party bringing suit. Clearly COMPANY cannot lose the
right to its own patent..
What is intended to be covered by the clause?
--- Noel
Essentially, Scenario 1. If an end-user sues anyone else on the grounds
that a Contribution or the Work infringes its patent, the end-user loses
any patent licenses granted to it under the v.2.0 license for the
Contribution or Work. This does not mean that the end-user can no
longer use that code, only that it now does so in the absence of such a
patent grant.
