1.3.1 Research Questions
The main research question of this study is: What is the exposure to FOSS licensor's patent portfolio based on (1) contribution of software under a FOSS license; and/or (2) mere distribution of software under a FOSS license?
The above main research question is approached by two dependent research questions, which aim to address the above question from the FOSS licensee's perspective, i.e. whether and how the patent holder's exclusive patent rights in FOSS are gradually diluted (in terms of each exclusive patent right) based on sale, licensing and/or distribution of FOSS:
• Research Question 1: Does sale, licensing and/or distribution of FOSS trigger patent exhaustion?
• Research Question 2: Do the most common FOSS licenses, i.e. the BSD, the MIT and the GPLv2 licenses, which do not include express patent grants, still trigger an implied patent license?
The Research Questions 1 and 2 may be further specified as follows:
• Research Question 1: What are (i) the preconditions for the existence; as well as (ii) the scope; and (iii) the extent – and thereby the practical impact – of the patent exhaustion doctrine in the context of sale, licensing and/or distribution of FOSS in Europe and the US?
• Research Question 2: What are (i) the preconditions for the existence; as well as (ii) the scope; and (iii) the extent – and thereby the practical impact – of the implied patent license doctrine in the context of sale, licensing and/or distribution of FOSS in Europe (Finland, specifically) and the US?
1.3.2 Illustration of the Research Questions
Research Question 1 may be illustrated as follows: PICTURE 5: SALE OF FOSS
SALE SALE 1 2 3 3 FOSS Licensor (FOSS Contributor) FOSS Licensee1 (FOSS Distributor) FOSS Licensee2 (FOSS User)
PICTURE 5: SALE OF FOSS
Copyright Perspective: Arrows 1-3 illustrate the downstream flow of copyright license grants from the original FOSS Licensor (FOSS Contributor) releasing software under a FOSS license to FOSS Licensee 1 (FOSS Distributor, which in this example does not release own contributions under the respective FOSS license) and further to FOSS Licensee 2 (which may use FOSS internally or distribute FOSS with or without modifications). In case of the GPLv2 and perhaps the BSD license, copyright licenses are granted by FOSS Contributor directly to each FOSS Licensee (Arrows 1 and 3). However, as sublicensing is allowed under the MIT license, the copyright license grants may flow down from FOSS Contributor to FOSS Licensee 1 (FOSS Distributor) (Arrow 1), and from FOSS Licensee 1 further to FOSS Licensee 2 (FOSS User) under a sublicense (Arrow 2).
Patent Perspective: In this scenario, FOSS Licensor (FOSS Contributor) and/or FOSS Licensee 1 (FOSS Distributor) licenses, distributes and/or sells a copy of a FOSS program (embedded in a software or a hardware product or distributed as a standalone program) protected by both copyrights and patents owned by FOSS Contributor and/or FOSS Distributor. FOSS Licensee 2 buys the product. Research Question 1 inquires, what is the exposure (under the doctrine of patent exhaustion) based on sale of the FOSS program on patents owned by FOSS Contributor and/or FOSS Distributor. Accordingly, does FOSS Licensee 2 receive under the doctrine of patent exhaustion the right to use, copy, make, modify, distribute, sell, offer for sale and/or import the respective FOSS program under or irrespective of patents owned by FOSS Contributor and/or FOSS Distributor?
Research Question 2 may be illustrated as follows: PICTURE 6: LICENSING OF FOSS
LICENSE LICENSE 1 2 3 3 FOSS Licensor (FOSS Contributor) FOSS Licensee1 (FOSS Distributor) FOSS Licensee2 (FOSS User)
PICTURE 6: LICENSING OF FOSS
Copyright Perspective: The copyright scenario is the same as above in Picture 5: Arrows 1-3 illustrate the downstream flow of copyright license grants from the original FOSS Licensor (FOSS Contributor) releasing software under a FOSS license to FOSS Licensee 1 (FOSS Distributor, which in this example does not release own contributions under the respective FOSS license) and further to FOSS Licensee 2 (which may use FOSS internally or distribute FOSS with or without modifications). In case of the GPLv2 and perhaps the BSD license, copyright licenses are granted by FOSS Contributor directly to each FOSS Licensee (Arrows 1 and 3). However, as sublicensing is allowed under the MIT license, the copyright license grants may flow down from FOSS Contributor to FOSS Licensee 1 (FOSS Distributor) (Arrow 1), and from FOSS Licensee 1 further to FOSS Licensee 2 (FOSS User) under a sublicense (Arrow 2).
Patent Perspective: In this scenario, FOSS Contributor releases FOSS under a FOSS license subject to this study. FOSS Licensees 1 and 2 use the said FOSS program: FOSS Distributor distributes the said FOSS program further without modifications, whereas FOSS Licensee 2 (FOSS User) uses and/or redistributes the said FOSS program with or without modifications. Research Question 2 inquires what is the exposure (under the doctrine of implied patent license) based on release and/or distribution of FOSS on patents owned by FOSS Contributor and/or FOSS Distributor. Accordingly, does FOSS Contributor and/or FOSS Distributor grant FOSS Licensees an implied patent license under or in connection with the BSD, the MIT and/or GPLv2 license(s), and if yes, what is the scope of that license, and how far does it extend in the downstream chain of licensees?
1.3.3 Hypothesis to the Research Questions
It is acknowledged that no definitive answer to any of the research questions may be given before a clear and concise court ruling has been issued in the respective jurisdiction on the questions subject to this study in the context of FOSS licensing. However, this or any other fact does not limit the formation of research questions nor hypothesis to the research questions, which can also be constructed within the academic freedom before any fine forensic legal analysis, based on the sheer experience of practicing (FOSS) law and licensing.79 Accordingly, based on the experience, current status of FOSS case law and academic writings pertaining to the law and licensing of FOSS, the following hypothesis to Research Question 1 and Research Question 2 are presented:
• Hypothesis to Research Question 1: The first authorized sale of a copy of a FOSS program exhausts patent rights in the copy of the FOSS program.
• Hypothesis to Research Question 2: The most common FOSS licenses, the BSD, the MIT and the GPLv2 licenses, which do not include express patent grants, may still trigger an implied patent license under the totality of the circumstances surrounding licensing of the respective FOSS program.