Take this piece of open source innovation:
If You institute patent litigation against any entity (including a cross-claim or counterclaim in a lawsuit) alleging that the Work or a Contribution incorporated within the Work constitutes direct or contributory patent infringement, then any patent licenses granted to You under this License for that Work shall terminate as of the date such litigation is filed.
Apache License 2.0, in section 3
Now, imagine the world where Microsoft decides to embrace that clause and add it to its shrink-wrap EULA. And every other vendor does likewise.
good, bad or ugly?
nicholas on 2005-09-30T10:06:55
I don't know. When I mentioned this in the office the first comment was that Microsoft would have carte blanche to (mis)appropriate any patented software they felt like, because no-one would dare try to sue them. But thinking further the bottom feeding pond life[*] who were totally open source might continue.
But really I'm not sure. It just creates new nukes - this time a denial of software attack. Medium term I think it only favours the really big OS vendors (who can use entirely in house products) against the merely big companies who currently have the patent nukes. I suspect it will make little difference against the medium or small companies, whom as far as I can tell are not the winners of the current toilet paper patent regime. Long term I'm not sure if it would have the effect of decreasing the value of worthless patents, something I would like to happen.
(I have no fundmental objection to patents on principle. But several classes of things currently being patented should not, as there is no need either to encourage innovation in that field, or to make trade secrets public. And likewise there is abuse of the patent system everywhere else. Then again, there is nothing new under the sun, as the Victorians were busy patenting many things of dubious benefit over 100 years ago. Or maybe we should trust the professionals at the patent offices - Everything that can be invented has been invented. -Charles H. Duell, Commissioner, U.S. Office of Patents, 1899.)
* I am not enamoured of pure IP licensing companies, who neither make products nor do research. I do not feel that they contribute to progress or the greater good.
Re:
Aristotle on 2005-09-30T11:19:35
Yeah, I thought about it for a while and concluded that none of the currently important scenarios would be affected.
The only significant change is that MSFT would have a weapon they could use against their own customers: if MSFT decided to sue someone, and that some was dependent on MSFT software, then they couldn’t sue back, even if they had the kind of patent portfolio and lawyer money that would usually be used to effect a cross-licensing stand-off.
In other words, no practical difference.
I think as a protection clause in F/OSS licences it makes sense, though.
