[DannyBee]

1. Actually, pretty much any serious patent licensing lawyer believes there is a grant (either explicit or implicit), because there is tons and tons and tons of caselaw on implicit patent grants (and the related principles of exhaustion), and while they don't include the word "software", the circumstances are otherwise identical. The others are mostly unable to admit it due to their client lists.

The number of lawyers i know who actually disagree in practice, and seriously believe it, is zero.

A significant number even believe there is an explicit grant. That's because MIT explicitly does not mention copyright, so it may not even need an implied license. it just says "to deal in the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Software, and to permit persons to whom the Software is furnished to do so""

IE it says "whatever rights you need to use, copy, modify, blah blah blah, you get those".

Other licenses explicitly identify copyright rights, etc. You'd be super hard-pressed to argue this is trying to talk about only copyright (meaning it's not even an implicit grant, but an explicit one).

2. As mentioned, it has been well tested in pretty much every other respect, just not for free software.

IE people giving stuff away, even under licensing agreements, even for free other things, other things under free for use license grants, etc

Like you can't actually find a case that doesn't find an implied license in the standard MIT license kind of circumstances.

That said, implied licenses do suck, and are limited in various ways.

[richardfontana]

Regarding the MIT license, I know one lawyer who disagrees in practice but I'm not sure if that lawyer seriously believes it. That lawyer is associated with an effort by some companies that have traditionally used standards-setting activity as a patent license revenue generating activity, to argue that open source licenses can legitimately preclude any grant of patent license, explicitly or implicitly (that is, that an open source license can be a pure copyright license). Part of that effort is an attempt to argue, based for example on historical evidence or on a policy basis, that certain widely-used open source licenses, like the MIT license, are susceptible to the "copyright only" interpretation.

My co-worker Scott Peterson has given a lot of thought to the issue of the MIT license as explicitly embodying a patent license grant; I am hoping he will publish an article on this in the near future.

[DannyBee]

I really hope Scott posts his research. I know he's given this a lot of thought and looked through a lot of precedent on this issue.

Honestly, he was the one who convinced me that there really is nothing out there to hang your hat on when it comes to suing people for patent infringement in MIT licensed software.

[dikaiosune]

Since it wasnt clear from my post above, I buy all of this. But since IANAL, and I couldn't easily find a credible patent lawyer who has written publicly about this, I think it's reasonable to be measured in the claims I made. That said, you're obviously personally more familiar with the situation and having seen you around here before I'd give some weight to what you're saying. It's still a shame that it's difficult to find any public references. I also think it's a shame that there hasn't been a direct legal test/precedent for applying MIT style implicit grants to software. It might be a no brainer extension of existing precedent but to a lay person like me that doesn't quite sound like a sure bet.

Granted, the whole patent thing seemed a bit overblown to me. For the vast majority of companies, it's always seemed like you would probably have much bigger things to worry about if you thought protection from Facebook legal over UI patents was your main concern.

[bsimpson]

You're replying to a lawyer in the Open Source Program Office at Google:

https://www.pli.edu/Content/Faculty/Daniel_Berlin/_/N-4oZ1z1...

If there's anyone I'd expect to have a handle on open source law, it's him.

[Sacho]

While I love reading DannyBee's opinions and am inclined to believe what he says, it's unfair to shoot down parent with an argument from authority; DannyBee did not actually cite any cases to highlight the precedent on implicit patent grants, which is exactly parent's point - it is very difficult to find publicly available information on this, aside from informal commentary.

[true_religion]

Well the main thrust of his post (as I understood it), was contained within the first sentence:

> I couldn't easily find a credible patent lawyer who has written publicly about this

Since DannyBee is quite possibly a "credible patent lawyer", then the above poster is getting what he asked for.

[dikaiosune]

Yeah I think this is fair. Although it might have helped to preface with that. Nonetheless, a small amount of egg on my face.

[DannyBee]

How much do you want and in what area? Googling "federal circuit implicit patent grant" will find you tons of free sources, as will "Federal circuit exhaustion".

Like i said, it just doesn't say "software" on it. But it's not like this is fresh snow. People have been dealing with this in every facet of thing for years.

There's plenty of caselaw even on things like "person gives away free samples, later tries to sue for patent infringement" or "person gives gift, later tries to sue for patent infringement and "person licenses !software, later tries to sue for patent infringement".

If you have access to lexis or something, it's all neatly organized too :)

If you don't, here's a reasonable case to start on exhaustion:

http://www.cafc.uscourts.gov/sites/default/files/opinions-or...

Exhaustion of patent rights applies even when it's given away free: "In summary, we hold that patent exhaustion principles apply equally to all authorized transfers of title in property, regardless of whether the particular transfer at issue constituted a gift or a sale. "

Here's an older article with a ton of cites: https://www.finnegan.com/en/insights/the-u-s-supreme-court-c...

Note: All the parts in the article that talk about restricting use post-sale are now invalid. The supreme court held, last year, that post-sale restrictions cannot be imposed, exhaustion still occurs, too bad, so sad. (http://www.ipwatchdog.com/wp-content/uploads/2017/05/Supreme...)

Now remember, it doesn't matter if it was sold sold or given away,, i just gave you precedent saying it applies just as well to a gift.

So those are out the window too.

That's just on the exhaustion side, even without finding an implied license (which are closely related).

There really is just no precedent to hang your hat on that says "yeah, you can give people stuff, tell them they can use it, and then sue them for patent infringement".

It doesn't matter if it's an implied grant, exhaustion, you name it. There is just no case out there that says "yeah, that's okay".

[Sacho]

Uhh..wow, thank you. I didn't actually expect you to do the work for me(not your job/it's why I said I believed you in the initial post), I was just making a point that others might be skeptical.

I guess I was googling for the wrong term - implicit patent license leads to a very different set of speculative answers compared to "implied patent grant" and "federal circuit exhaustion".

[Eridrus]

Thank you for bringing actual legal knowledge to this forum rather than the usual armchair lawyering we get.