Jennifer,
> > 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.
Let us say that IBM is using an Apache WORK. Let us further assume IBM
might have a patent on something that they choose not to contribute to the
WORK. Finally, let us stipulate that there are other patents involved in
the WORK from other parties. If someone else were to implement IBM's patent
in code and contribute it to the WORK that IBM uses as a basis for their own
product containing their patent, are you saying that if IBM were to sue to
protect their own patent, that they would lose any patent licenses granted
to IBM through Apache License v2?
> > 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.
I'm sorry. That wasn't intentional. I was trying to posit a situation
wherein someone makes a "poisoned contribution": a contribution containing
code for which they have filed a patent, with the expectation that there
will be a dependence upon that technology by the time they are granted the
patent, thus allowing them to claim that the code contains their licensable
technology. At least that was how I understood a concern mentioned earlier
on the list.
> > What is intended to be covered by the clause?
> 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.
Doesn't that last sentence translate into illegal use, unless they acquire
the necessary patent license(s) via other means?
--- Noel
