Wait, they're getting rid of the patents grant?
* http://en.swpat.org/wiki/Implicit_patent_licence
* https://en.wikipedia.org/wiki/MIT_License#Relation_to_Patents
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.
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.
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.
> 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.
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".
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".
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.
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.