[jcranmer]

I have a hard time seeing how Intel v ULSI applies here. The decision in Intel v ULSI rests quite heavily on the idea that the nexus of the violation of the patent happens during the manufacturing process and not the design process. That is, the court looked at the contract to find that HP was selling the potentially-violating chips.

That fact is hard to extend to GitHub: GitHub is very arguably a mere distributor of software, not providing the "sale" that would exhaust patent rights. The sort of tortured logic you would have to get to to reach this fact is the kind of logic that tends to lose at court, and furthermore is unlikely to find many supporters in open source software legal teams (it would render most of the GPL null and void, for example).

[AstralStorm]

GPL did not handle any patents until version 3. As for version 3, it has a patent grant clause.

Even distributing BSD licensed code by a licensee exhausts patents embodied in it.

(As an interesting case, this might mean patents related to code published as ISO examples voids MP3 patents on specific algorithms used in that code. The question then is if the standard body is a licensee.)

[epjuykfixgd]

> GPL did not handle any patents until version 3

ORLY? So if you open up the text of the GPLv2 and Ctrl+F for "patent" and all those hits show up—especially in and around section 7—that's what, then?

The _GPLv2 doesn't address patents, but GPLv3 does_ mantra is a too-common lie. GPLv2 does address patents, explicitly.