Cem, Larry's advice (tongue in cheek or not) isn't the issue for FedGov or ARL policy. That I randomly picked an ARL patent that happens to illustrate the potential issue is simply lucky.
The issue is that someone in some other part of the government could have released an open source implementation with a patent grant of Dr Chen's patent and deprived him (and ARL) of financial reward for his work. I'm sure there are some here who would simply shrug and say who cares...rent seeking is evil anyway...but the FedGov policies regarding rewarding innovation is one aspect of attracting and keeping inventors in the government as opposed to going to private industry. ARL and the DoD has an even harder time than research universities when it comes to the left hand not knowing what the right hand is doing. IMHO explicit patent grants provided by ARL in open source releases should be limited to those generated by ARL itself unless ARL intends to insure it isn't giving away a patent created by an inventor in another branch of the federal government. I say this over and over but while it is laudable for you to give away something you create to the world it is unethical for you to give away something someone else created to the world. Broad patent grant language in FOSS licenses/policies risks exactly that for very large organizations and the cost to prevent that means it is far easier (and cheaper) to simply not open source. I really implore you to revisit the ECL V2 patent language and the reasons they didn't feel that vanilla Apache 2.0 was suitable for them when you (and the ARL lawyers and your OTT) are helping evolve the ARL open source policy. Nigel Obligatory Disclaimer: speaking as an individual, the opinions expressed here are my own and no one else's, etc. From: Karan, Cem F CIV USARMY RDECOM ARL (US) <cem.f.karan....@mail.mil<mailto:cem.f.karan....@mail.mil>> Date: Sunday, Mar 19, 2017, 6:42 AM To: lro...@rosenlaw.com <lro...@rosenlaw.com<mailto:lro...@rosenlaw.com>>, license-discuss@opensource.org <license-discuss@opensource.org<mailto:license-discuss@opensource.org>> Subject: Re: [License-discuss] [Non-DoD Source] Re: patent rights and the OSD I was out Thursday and Friday, but... see attached Federal Register notice regarding this particular patent. I know that Larry was (mostly) pulling everyone's leg, but before anyone gets themselves into trouble, I figured I should put the warning out there. I'm not a lawyer, as far as I know this doesn't count as an official warning, I'm not representing the US Government (or any other government) in this matter, etc., etc., etc. I just personally don't want to see anyone spend time on something and then get burned in the end. Please don't shoot (or flame) the messenger. Thanks, Cem Karan > -----Original Message----- > From: License-discuss [mailto:license-discuss-boun...@opensource.org] On > Behalf Of Lawrence Rosen > Sent: Wednesday, March 08, 2017 3:07 PM > To: license-discuss@opensource.org > Cc: Lawrence Rosen <lro...@rosenlaw.com> > Subject: Re: [License-discuss] [Non-DoD Source] Re: patent rights and the OSD > > All active links contained in this email were disabled. Please verify the > identity of the sender, and confirm the authenticity of all links > contained within the message prior to copying and pasting the address to a > Web browser. > > > ________________________________ > > > > > Nigel Tzeng wrote: > > > Using US7460689B1 System and method of detecting, recognizing, and tracking > > moving targets as an example it could be useful to have > an open source copyright license to any USG developed MTI implementation of > US7460689B1 because the libraries and functions used to > implement the patent could be reusable. > > > > Nigel, I am avoiding reading that patent because I have no time, but since > you did read it I can ask you some questions: > > > > Is the patent already "reusable" for things other than "detecting, > recognizing, and tracking moving targets"? What is the relationship > between "libraries and functions used to implement the patent" and all those > different uses of the patent claims than are disclosed in > US7460689B1? Are those copyrighted "libraries and functions" themselves > patented claims in US7460689B1? > > > > Without such a patent analysis – that no open source engineer is required to > undertake prior to an infringement notice from the patent > owner – I'm comfortable recommending that we implement such open source > software. The hell with random patents tossed out by Nigel > Tzeng to scare me. :-) > > > > /Larry > > > > "If this had been legal advice it would have been accompanied by a bill." > > > > > > -----Original Message----- > From: License-discuss [Caution-mailto:license-discuss-boun...@opensource.org] > On Behalf Of Tzeng, Nigel H. > Sent: Wednesday, March 8, 2017 7:18 AM > To: license-discuss@opensource.org > Subject: Re: [License-discuss] [Non-DoD Source] Re: patent rights and the OSD > > > > Cem, > > > > To give them a more concrete example (hopefully not a flawed one ☺) I skimmed > ARLs patent portfolio. > > > > Using US7460689B1 System and method of detecting, recognizing, and tracking > moving targets as an example it could be useful to have > an open source copyright license to any USG developed MTI implementation of > US7460689B1 because the libraries and functions used to > implement the patent could be reusable. While a lot of the basic functions > may exist today in GDL or SciPy the underlying image > processing, change map creation, math, etc may have been reusable outside of > the context of US7460689B1 and of greater interest to the > software community when most of those capabilities were only widely available > in systems like Matlab or IDL. > > > > Even more so the software components required to interface with Army systems > that would have to be built around any operational MTI > system. Getting access to source code from another government agency/DoD > program isn’t always as painless as one might expect. > > > > While these could be broken out and individually open sourced it is an > additional burden on the Army/DoD Program and it simply may not > get done. It would be far easier for the program to open source the entire > system with the note that US7460689B1 and others apply to > these 4 subsystems and care must be applied to any reuse of those components. > > > > I’m also curious of their opinion on the impact of the policy to give away > all software patents to Executive Order 10096 and the intent > that individual government researchers have the opportunity to benefit from > their inventions. Is there reason that software inventors > should have less financial opportunity than hardware inventors? > > > > What safeguards exist or will exist for the USG inventor that an unrelated > ARL or DoD project will not open source code that unknowingly > implements their patent and provide a free patent grant? What happens to the > entity that may have contracted for an exclusive patent > license agreement for that patent through their technology transfer office? > Will the office responsible for approving ARL open source > releases with patent grants be able to review source code applicability to > not just ARL patents but those from the NRL or DOE? > > > > There is a reason I favor the patent grant language in the Educational > Community License v2.0 for GOSS and large research organizations. > > > > Regards, > > > > Nigel > > > > ObDis: Not speaking for the lab. > > > > On 3/8/17, 9:36 AM, "License-discuss on behalf of Karan, Cem F CIV USARMY > RDECOM ARL (US)" <license-discuss- > boun...@opensource.org on behalf of cem.f.karan....@mail.mil < > Caution-mailto:license-discuss- > boun...@opensource.org%20on%20behalf%20of%20cem.f.karan....@mail.mil > > > wrote: > > > > I can pass it through ARL's lawyers, as well as pass it to the code.gov > > people. > > > > Thanks, > > Cem Karan > > > > > -----Original Message----- > > > From: License-discuss > [Caution-mailto:license-discuss-boun...@opensource.org < > Caution-mailto:license-discuss- > boun...@opensource.org > ] On > > > Behalf Of Stephen Kellat > > > Sent: Tuesday, March 07, 2017 10:41 PM > > > To: license-discuss@opensource.org < > Caution-mailto:license-discuss@opensource.org > > > > Subject: Re: [License-discuss] [Non-DoD Source] Re: patent rights and > the > > > OSD > > > > > > All active links contained in this email were disabled. Please verify > the > > > identity of the sender, and confirm the authenticity of all links > > > contained within the message prior to copying and pasting the address > to a > > > Web browser. > > > > > > > > > > > > > > > ---- > > > > > > > > > On Mar 7, 2017, at 10:08 PM, Tzeng, Nigel H. <nigel.tz...@jhuapl.edu < > Caution-mailto:nigel.tz...@jhuapl.edu > > wrote: > > > > > > > > You know the more I think about this, the disclaimer of patent rights > in > > > > CC0 is probably best for GOSS because it avoids the attempt for > > > a one size fit all patent grant language among different agencies with > > > different policies and the complexity under which patent rights are > > > awarded to whom under the Bayh-Dole Act and Executive Order 10096. > > > > > > > > Employees of federal agencies, especially research oriented ones, have > > > > some financial interest and rights under 10096. > > > > > > > > Likewise non-profits and small businesses under Bayh-Dole. > > > > > > > > IMHO patent grant language in FOSS licenses provide a false sense of > > > > security. > > > > > > > > I would rather the government open source as much as possible > regardless > > > > of patent rights as long as any known patents are disclosed. > > > As seen in Ximpleware v Versata the patents typically only cover a small > > > portion of the overall system (VTD-XML). While it is relevant from > > > the perspective of being able to use the system as built it is less > relevant > > > from a code reuse perspective. > > > > > > > > For large government systems significant software components could > often > > > > be reused without the specific portions covered under > > > patent. > > > > > > > > So just having a copyright license to the entire project would provide > > > > significant value to the community. There is code I wrote 30 years > > > ago I'd love to get access to again even if I couldn't use the rest of > the > > > system. > > > > > > > > > > > > _______________________________________________ > > > > License-discuss mailing list > > > > License-discuss@opensource.org < > Caution-mailto:License-discuss@opensource.org > > > > > > Caution-Caution-https://lists.opensource.org/cgi-bin/mailman/listinfo/license-discuss > > > > > > After a less than fabulous day at work for IRS dealing with my tiny > corner > > > of tax law as well as my accounts work, I am tempted after > > > reading this. Perhaps this could be used as well as the rest of this > thread > > > as pre-decisional input to open a tight Inquiry in the Federal > > > Register. That's the first step we can take to move into building a > formal > > > record for a body of law. Alternatively getting something > > > chartered under the Federal Advisory Committees Act might help move this > > > forward. > > > > > > I think the debate has dragged on a bit for more than a few months. > Moving > > > to where desirable federal policy/policies are adopted is > > > probably doable. Could we narrow this down to 3 or fewer courses of > action > > > that might be explored by ARL counsel in an inquiry notice? > > > Even if list participants are the only people that respond to a notice > in > > > the Federal Register we're still building a useful record for later use > > > such as Federal Acquisition Rules changes, for example. > > > > > > Depending upon what shows up in the President's budget set to drop > Monday, I > > > either will have a lot of time on my hands coming up or > > > an ICTAP certificate plus lots of time on my hands. I want to see > Federal > > > OSS policy evolve. We have laid the groundwork here but need > > > to get it in the official record soon. > > > > > > Stephen Michael Kellat > > > GS-0962-07/1 > > > These views are solely my own and not those of the US Government. Rank, > > > position, grade, and bureau are cited for identification > > > purposes only. > > > > > > > > > > > > _______________________________________________ > > > License-discuss mailing list > > > License-discuss@opensource.org < > Caution-mailto:License-discuss@opensource.org > > > > > Caution-Caution-https://lists.opensource.org/cgi-bin/mailman/listinfo/license-discuss > > > > > > _______________________________________________ > > License-discuss mailing list > > License-discuss@opensource.org < > Caution-mailto:License-discuss@opensource.org > > > Caution-https://lists.opensource.org/cgi-bin/mailman/listinfo/license-discuss > < Caution-https://lists.opensource.org/cgi- > bin/mailman/listinfo/license-discuss >
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