2. Grant of Patent License

Both OSL and AFL

Licensor hereby grants You a world-wide, royalty-free , non-exclusive, perpetual , sublicensable license, under patent claims owned or controlled by the Licensor that are embodied in the Original Work as furnished by the Licensor, to make, use, sell and offer for sale the Original Work and Derivative Works.

The OSL/AFL patent license grants "world-wide, royalty-free, non-exclusive, perpetual sublicensable" rights coextensive with the copyright license grant.

The license grant to "make, use, sell and offer for sale" is intended to encompass the patent owner's rights under the patent laws to practice the claimed invention. (35 U.S.C. § 154.) Unfortunately, this patent grant neglects to mention the right to import.

The patent license applies only to a specific set of the Licensor's patent claims, namely those that are "embodied in the Original Work as furnished by the Licensor." It is not a license to the Licensor 's entire patent portfolio.

Those licensed patent claims are available for both the Original Work and Derivative Works. This is not a license to embody those patent claims in independent works.

Comparison to Other Licenses

Of the other licenses discussed in this book, only the MPL and CPL grant an express patent license. For the other licenses, we can only assume that there is an implied license to make, use, sell or offer for sale, or import the original licensed software ”at least as long as they are contracts and not bare licenses .

The MPL grants a patent license only for the Original Code and the Contributions . No patent license is expressly granted for derivative works as such, and so depending on the specific patent claims and the specific software under the license, the MPL patent license may not extend to derivative works. (MPL sections 2.1[b], 2.1[d], 2.2[b], 2.2[d].)

The CPL's patent license applies only to each Contribution , but only if the patent license covered the work at the time the Contribution was added. Otherwise, derivative works may not be covered. (CPL section 1 definition of Licensed Patents and section 2[b].)