Re: How can we submit code patches that implement our (pending) patents?

On Mon, Jul 09, 2018 at 08:29:08AM +0000, Tsunakawa, Takayuki wrote:
> From: David Fetter [mailto:david(at)fetter(dot)org]
> > We went out of our way to excise code that the PostgreSQL license
> > doesn't cover some years back. I think that was done for good
> > reasons, which obtain to this day. While the introduction of code
> > someone else ultimately owns may seem harmless or even beneficial
> > today, owners change, as do their motivations. When we have
> > nothing of this kind in the project, we expose our future users to
> > none of that risk.
>
> From: Andres Freund [mailto:andres(at)anarazel(dot)de]
> > Yep. And even if the original submitter has good intent, it's not
> > unlikely for companies to go bancrupt and their assets sold off.
>
> Thank you for supporting me, Andres. And please don't mind, David.
> I don't think you are attacking me. I understand your concern and
> that you are also trying to protect PostgreSQL.

Thanks for your understanding.

> On the other hand, I think TPL seems less defensive. I read in some
> report that Apache License and some other open source licenses were
> created partly due to lack of patent description in BSD and GPLv2.
>
> How can we assure you? How about attaching something like the
> following to relevant patches or on our web site?

> [Excerpt from Red Hat Patent Promise]
> Red Hat intends Our Promise to be irrevocable (except as stated
> herein), and binding and enforceable against Red Hat and assignees
> of, or successors to, Red Hat’s patents (and any patents directly or
> indirectly issuing from Red Hat’s patent applications). As part of
> Our Promise, if Red Hat sells, exclusively licenses, or otherwise
> assigns or transfers patents or patent applications to a party, we
> will require the party to agree in writing to be bound to Our
> Promise for those patents and for patents directly or indirectly
> issuing on those patent applications. We will also require the party
> to agree in writing to so bind its own assignees, transferees, and
> exclusive licensees.

Unfortunately, this does not mean anything until courts have upheld
it. Were Red Hat to be taken over by people who didn't see things
this way, it is a long way from clear that such a statement would be
upheld in every court, which is what would have to happen.

I am not any kind of attorney, but I would not believe anyone who said
that they knew for certain how every court on (or off) the planet
would ever rule on a clause in a...well, is that a contract? A
license? An aspirational goal without legal force? To my knowledge, no
court anywhere has had an opportunity to rule on it, so I don't know.

Let's imagine that Red Hat gets this written agreement from a third
party. Let's further imagine that that third party happens to be (or
be swayed by) a "non-participating entity" a.k.a. patent troll,
experienced in writing agreements with exploitable loopholes in them.
What good is Red Hat's promise then?

I really appreciate your forthrightness on this, but I frankly do not
understand how you can actually make representations that would stand
the test of time. Whatever is in it needs to be true, not just this
year, but decades hence under potentially hostile legal actions.

Best,
David.
--
David Fetter <david(at)fetter(dot)org> http://fetter.org/
Phone: +1 415 235 3778

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