Computer
The
& Internet
Lawyer
Volume 26 ▲ Number 8 ▲ AUGUST 2009
Closing the Loophole: Open Source Licensing
& the Implied Patent License
By Christian H. Nadan
O pen source software harbors an unsettling se-
cret: More than half of the open source soft-
ware in the world is not protected by a patent license.
Rather, the software is distributed and used around
the world under open source licenses that do not in-
clude a patent license grant. Indeed, three of the four
most popular open source licenses do not include a
patent license, including the two best known, the
GNU General Public License (GPL) and the Berke-
ley Software Distribution license (BSD).1 Thus, the
famous Linux operating system (distributed under
the GPL) has been widely deployed in numerous
large commercial enterprises from Google to Daim-
lerChrysler and in many products such as the TiVo
box, all without benefit of a patent license.
Christian H. Nadan is a Senior Director and Deputy
General Counsel, Sun Microsystems, Inc., and Adjunct
Professor, University of California Berkeley, Boalt
Hall School of Law. This article represents the views
and analysis of the author alone and not of Sun
Microsystems, Inc., or any other entity. The author
thanks Brandon Baum and Michele Milnes Nadan for
their generous assistance and thoughtful comments and
suggestions.
Ronald L. Johnston, Arnold & Porter, LLP Editor-in-Chief*
Without a patent license, anyone copying,
using, or distributing the open source software
might face liability for patent infringement from
the creator or any subsequent contributor to the
code, if the creator or contributor patented any
of its creations or contributions. Yet this explains
why most users properly discount such risk of
actual patent infringement—why would the cre-
ator or contributor make the software available
to the world in the first place just to turn around
and sue its adopters for patent infringement?
Moreover, even if that were the creator’s nefari-
ous plan, would the law permit such a tactic? It
is widely assumed with logical force that the law
would imply a patent license in such a situation,2
but in fact, the traditional law of implied license
does not fit so easily.
The uncertainty of implied licenses is the
source of unspoken unease in the open source
community. Now, however, the Court of Appeals
for the Federal Circuit has provided an alternate
and perhaps better-fitting doctrine to protect
open source licensees: implied patent license by
legal estoppel. This doctrine might finally elimi-
nate any doubts concerning open source software
under licenses without a patent grant. In turn,
Open Source
this may accelerate open source software’s already rapid
maturation and acceptance.
Open Source Software
Open source software is software made freely avail-
able to the public under a license that permits free use,
copying, modification, and distribution. Typically, a
community of developers works with the code, creating
enhancements, extensions, and improvements, which are
in turn freely shared with the community and further
enhanced, extended, and improved.3 In this way, valu-
able and productive software programs are created and
evolve, such as the Linux operating system, the Apache
Webserver, and the MySQL database.
Many thousands of users have deployed open source
software, from individuals to massive global enterprises.
As an example, the MySQL database software is down-
loaded more than 60,000 times every day.4 In a recent
study, the Gartner research group found that 85 percent
of companies surveyed are currently using open source
software in their enterprises, and the remaining 15 per-
cent are expecting to in the next 12 months.5 In other
words, by 2010 every one of the 274 end-user organiza-
tions surveyed across various countries and markets in
Asia Pacific, Europe, and North America will be using
open source software. Open source software has become
a major force in the technology industry. Accordingly,
removing ambiguity and uncertainty in open source
licensing can reduce transaction costs and risk across the
technology industry.
Without a Patent License, No Patent
Rights Are Granted
The most common open source licenses have lived
the longest. GPL was written in 1991, and BSD was
written even earlier.6 At that time, it was not at all clear
that software was patentable.7 Hence, these older licenses
did not focus on or include an express patent grant.
Instead, these licenses used mostly copyright language
to describe the rights granted and obligations imposed
under the licenses. For instance, GPL grants the right
to “copy and distribute” the code and to “modify” the
code, “provided that you conspicuously and appropri-
ately publish on each copy an appropriate copyright
notice . . . .”8 The GPL does not expressly exclude pat-
ents from the license grant of course, and one could
argue that the failure to mention any specific form of
intellectual property in the grant meant that the license
covers all forms, including patents. Yet where the GPL
includes a patent obligation, it does so expressly; the
creator is expressly obligated to pass through any pat-
ent licenses that it receives from third parties.9 Thus, the
2 • The Computer & Internet Lawyer
GPL includes an express patent obligation as to third
party patents, but apparently not as to the creator’s own
patents.
The GPL’s failure to include an express patent license,
particularly while otherwise addressing patents, might
mean that no patent license rights are granted. In State
Contracting & Engineering Corp. v. Florida, for example,
the court examined a broad license grant that similarly
failed to mention patents.10 With respect to certain of
its data, the patent owner granted a license to “all rights
to use, duplicate or disclose, in whole or in part, in any
manner and for any purpose whatsoever . . . . ”11 The
court ruled that the omission of an express provision
providing for the license of patent rights demonstrated
that the contract did not convey a patent license. As
with GPL, the contract here did address patent rights
elsewhere, which “shows that, if the parties had intended
to convey other patent rights, they would have done so
explicitly.”12
The BSD license grant simply provides that
“[r]edistribution and use in source and binary forms,
with or without modification, are permitted” provided
certain conditions are met, such as including a copy-
right notice. While the word “use” is a patent term, and
nothing in this grant excludes its applicability to patents,
that result is not at all certain. By comparison, the very
similar MIT license provides “permission to deal in the
Software without restriction, including without limita-
tion the rights to use, copy, modify, merge, publish, dis-
tribute, sublicense, and/or sell copies of the Software.”
By using patent terms like “deal in,” “use,” and “sell,” the
MIT license grant is more likely to be deemed to include
express patent rights.13 By comparison, therefore, the
MIT license only heightens the concern that the BSD
license does not include express patent rights.14
Even if No Patent Rights Are Granted, Might
an Implied License Exist?
Even if some open source licenses lack an express
patent license, it might not matter. Many believe that
there is an implied patent license in the GPL, BSD, and
the other licenses lacking an express patent license.15
The problem is that the law of implied patent license
is ill-fitting and unreliable. Implied licenses can arise
by acquiescence or conduct, by equitable estoppel, and
by legal estoppel.16 The Federal Circuit has cautioned,
however, that “judicially imposed licenses are rare under
any doctrine.”17
An implied license by conduct or acquiescence
requires a nexus between the patent owner’s course of
conduct or a waiver of its patent rights, and the alleg-
edly infringing action.18 The open source licensee has
Volume 26 • Number 8 • August 2009

a facially attractive argument that it exploited the open
source software in reliance on the licensor’s offering
the software under a broad copyright license. In other
words, licensor’s conduct in making the code publicly
available is the cause of the allegedly infringing action—
licensee’s use of the software under the very copyright
terms set out by the licensor.The only problem with this
argument is that it is not necessarily reliable, as implied
license by conduct or acquiescence is highly fact depen-
dent. Indeed, cases finding such implied licenses often
involve much more obvious conduct or acquiescence,
such as a licensee’s reliance on six years of licensor’s
public statements and inducement to create the infring-
ing goods.19 This makes it hard to predict what a court
would do in a particular case. Such uncertainty adds
risk, thereby increasing the cost of using open source
software under one of the open source licenses lacking
a patent grant.
The GPL’s failure to include an
express patent license, particularly
while otherwise addressing patents,
might mean that no patent license
rights are granted.
Implied license by equitable estoppel is an even less
helpful doctrine. It requires the infringer’s reliance on
the patentee’s conduct and knowledge of the patent.20
An open source licensee might prove the first element,
as discussed earlier. The second element presents a chal-
lenge, however. Rarely would the open source licensee
know of the patents that the creator might have obtained
on the open sourced software. Indeed, the open source
licensee often acquires the software from someone who is
one or more levels downstream from the patent-owning
creator and might not be aware of the creator’s identity
at all. Moreover, since open source software is typically
the product of many contributors, any of whom could
have a patent on his or her contribution, this uncer-
tainty is multiplied. The licensee may not know who
all the creators are, let alone whether any of them has a
patent. Thus, implied license by equitable estoppel will
rarely benefit an open source user or redistributor.
Implied license by legal estoppel may be the most
promising doctrine on which to find an implied license
in the context of open source software made available
under a license without an express patent grant. Legal
estoppel is “where a patentee has licensed or assigned a
right, received consideration, and then sought to dero-
gate from the right granted.”21 A pair of Federal Circuit
cases, applied in combination, reveals how this doctrine
Volume 26 • Number 8 • August 2009
Open Source
can protect open source licensees who have not received
an express patent license.
In TransCore LP v. Electronic Transactions Consultants
Corp., the patent owner entered into a patent settle-
ment agreement with a competing manufacturer of toll
collection systems.22 In exchange for $4.5 million, the
patent owner covenanted not to sue for infringement
of certain patents, but specifically excluded from the
covenant “any other patents issued as of the effective
date of this Agreement or to be issued in the future.”23
Some years later, the patent owner again charged the
competing manufacturer’s goods with patent infringe-
ment, this time asserting a patent issued after the date
of the settlement and therefore excluded from the cov-
enant not to sue. Because the later-issued patent’s scope
overlapped the earlier patents, however, the competing
manufacturer could not practice the covenanted pat-
ents (for which it paid $4.5 million) without practicing
the later-issued patent. Thus, to obtain the benefit of its
bargain with the patent owner, the competing manufac-
turer would necessarily infringe the later-issued patent.
The court explained the rationale behind the legal
estoppel doctrine: “[T]he licensor (or assignor) has
licensed (or assigned) a definable property right for
valuable consideration, and then has attempted to dero-
gate or detract from that grant. The grantor is estopped
from taking back in any extent that for which he has
received consideration.”24
Implied license by legal estoppel may
be the most promising doctrine on
which to find an implied license in the
context of open source software made
available under a license without an
express patent grant.
The patent owner was therefore legally estopped
from asserting the later-issued patent in derogation of
the covenant granted for $4.5 million under the settle-
ment agreement. The court disregarded the contract
language in the settlement agreement excluding the
later-issued patent because this was not a contract-based
estoppel; rather, the patent owner was legally estopped
from derogating from the rights it expressly granted.25
The circumstances of an open source license are
similar. The open source licensor grants a license to use
and distribute the open source software. If the licensor
has also obtained a patent on that software, then use or
distribution would likely infringe the patent. In other
words, because the patent’s scope overlaps the license
grant, the licensee cannot exercise the license grant
The Computer & Internet Lawyer • 3
Open Source
without infringing the patent. Simply stated, the open
source licensor has granted a right to enjoy the software
and would be derogating from that right by claiming
patent infringement.26
As noted, the test has one additional element, consid-
eration: Implied license by legal estoppel is found when
a patentee has licensed or assigned a right, received
consideration, and then sought to derogate from the
right granted. Since open source licenses are always free,
with no license fee or royalty required, it might appear
that there is no consideration to the licensor.
The Jacobsen case fulfills the remaining
element of legal estoppel. The open
source licensor is obtaining a benefit,
non-monetary economic consideration
from the licensee.
The Federal Circuit has addressed this issue too, in
Jacobsen v. Katzer.27 Jacobsen involved a claim for copy-
right infringement against an open source licensee
who did not comply with the conditions of the open
source license. The court found that the open source
license was an enforceable contract and recognized that,
although the licensor did not receive money, the license
did provide non-monetary economic consideration.
Specifically, there are
substantial benefits, including economic benefits, to
the creation and distribution of copyrighted works
under public licenses that range far beyond tradi-
tional license royalties. For example, program cre-
ators may generate market share for their programs
by providing certain components free of charge.
Similarly, a programmer or company may increase
its national or international reputation by incubat-
ing open source projects. Improvement to a prod-
uct can come rapidly and free of charge from an
expert not even known to the copyright holder.28
The Jacobsen case fulfills the remaining element of
legal estoppel. The open source licensor is obtaining a
benefit, non-monetary economic consideration from the
licensee.This consideration justifies the law’s imposition
of a license, to prevent the licensor from preempting
the open source license grant while receiving consider-
ation from the licensee. “The choice to exact consider-
ation in the form of compliance with the open source
requirements . . . rather than as a dollar-denominated
fee, is entitled to no less legal recognition.”29 It is the
licensor’s choice to open source the software instead of
4 • The Computer & Internet Lawyer
demanding money. That choice should not enable the
licensor to give a license with one hand and sue for
patent infringement with the other on the ground the
consideration received is non-monetary.30
The confluence of TransCore and Jacobsen suggests
that open source licensees who do not receive an express
patent license still would enjoy an implied patent license
under the doctrine of legal estoppel. The patent own-
ing open source licensor is receiving a benefit from the
licensee’s giving attribution to the licensor, contribut-
ing modifications to the open source community, and
extending the licensor’s market share. Accordingly, as the
beneficiary of these benefits, the patent owner should
be legally estopped from asserting its patent in deroga-
tion of the rights granted to the licensee under the open
source license.31
Conclusion
On its face, it seems wrong for a licensor to grant
someone permission to do something and then turn
around and sue them for doing just that under licensor’s
patents. This basic premise is so reasonable and fair it
would likely prevail in many cases.32 Indeed, this prem-
ise is so widely held that the lack of an express pat-
ent license in the most common open source licenses
has not hindered massive adoption. To the contrary, the
undeniable benefits of open source—fantastic perfor-
mance for the price (the software is free), no barrier
to entry (again because the software is free), no vendor
lock-in (because the source code is open, you can fix or
enhance the code yourself if you do not like the vendor),
and standardization (the first three benefits foster mass
adoption)—have dwarfed any concerns about missing
patent grants. Open source software’s momentum con-
tinues to grow, and will continue to grow. Nonetheless, it
can only help to ground the popularly assumed implied
patent license on a solid legal foundation. The Federal
Circuit has provided a roadmap for future litigants and
courts to find an implied patent license in open source
licenses. Perhaps the patent license loophole will finally
be closed.
Notes
1. The top four most commonly used licenses are GPL (52
percent), LGPL (10 percent), Artistic License (9 percent), and
BSD (6 percent). See http://www.blackducksoftware.com/gpl3
(last visited 6/1/09). Of these four, only the Artistic License
includes a patent grant.
2. Richard Stallman, “Why Upgrade to GPL Version 3,” http://
gplv3.fsf.org/rms-why.html (last visited 6/1/09) (“With GPLv2,
users rely on an implicit patent license to make sure that the
company which provided them a copy won’t sue them”);
Adam Kubelka & Matthew Fawcett, “No Free Beer—Practice
Volume 26 • Number 8 • August 2009

Tips For Open Source Licensing,” 22 Santa Clara Computer
& High Tech. L.J. 797, 814 n.59 (2006) (“the GPL . . . relies
on an implied patent license”); Mark A. Lemley, “Intellectual
Property Rights and Standard-Setting Organizations,” 90 Calif.
L. Rev. 1889, 1924 (2002) (“Implied license is also likely where
an IP owner invites a use that would otherwise infringe, for
example, by posting their copyrighted work on the Internet for
free download.”).
3. For a discussion of the origins of open source software and
open source licensing generally, see Christian H. Nadan, “Open
Source Licensing: Virus or Virtue?,” 10 Texas Intell. Prop. L.J.
349 (2002).
4. “Sun Microsystems Announces Completion of MySQL
Acquisition; Paves Way for Secure, Open Source Platform
to Power the Network Economy,” at http://www.mysql.com/
news-and-events/sun/ (last visited 6/1/09).
5. Zafar Anjum, “Enterprise Open Source Adoption Underway
But Needs Company Policies” at http://www.cio.com/
article/464821/Enterprise_Open_Source_Adoption_Underway_
But_Needs_Company_Policies_ (last visited 61/09).
6. Technically, what is commonly known as GPL is actually GPL
version 2, released in 1991. The first GPL license was dated
1989. The BSD license dates to 1989 or earlier (see Marshall
Kirk McKusick, “Twenty Years of Berkeley Unix From AT&T-
Owned to Freely Redistributable,” at http://oreilly.com/catalog/
opensources/book/kirkmck.html) (last visited 6/1/09)).
7. It was not until the Federal Circuit’s decision in State Street
Bank & Trust Co. v. Signature Financial Group, Inc., 149 F.3d
1368 (Fed. Cir. 1998), that the patentability of software became
generally recognized.
8. For a list of the most common open source licenses and a
complete copy of each of them, see The Open Source Initiative
(OSI) site at http://www.opensource.org/licenses/alphabetical (last
visited 6/1/09). For a discussion of software licensing gener-
ally, see Christian H. Nadan, “Software Licensing in the 21st
Century: Are Software ‘Licenses’ Really Sales, and How Will
the Industry Respond?,” 32 Am. I.P. Law Ass’n Q. J. 555 (Fall
2004).
9. See OSI, supra n.8, GPL § 7.
10. State Contracting & Eng. Corp. v. Florida, 258 F.3d 1329, 1339
(Fed. Cir. 2001), cert. denied, 534 U.S. 1131 (2002).
11. Id.
12. Id. at 1339-1340; Robert W. Gomulkiewicz, “General
Public License 3.0: Hacking the Free Software Movement’s
Constitution,” 42 Hous. L. Rev. 1015, 1033 (2005) (“First, does
the GPL grant rights under the licensor’s patents as well as its
copyrights? Although the GPL’s grant language speaks mainly
in terms of copyrights, is there also an implied right under
patents?”).
13. See, e.g., Dowagiac Mfr’ing Co. v. Minnesota Moline Plow
Co., 235 U.S. 641, 648 (1915) (discussing a “course of granting
licenses to others to deal in [patented] articles embodying the
invention”), Pitney Bowes, Inc. v. Mestre, 701 F.2d 1365, 1370
(11th Cir. 1983) (involving a patent license to make, use, sell,
import “and deal in” the patented product).
Volume 26 • Number 8 • August 2009
Open Source
14. See OSI, supra n.8, MIT license. Once it became clear that
software was patentable and the US Patent Office began grant-
ing software patents, open source licenses began to include a
patent grant as a matter of course. For example, the Mozilla
Public License (MPL) and its derivatives such as the Common
Public License (CPL) and the Community Development &
Distribution License (CDDL) all include express patent grants,
as does the Apache License version 2.0 and the newest release
of GPL, GPLv3. These patent license grants vary in scope. The
MPL grants a license only as to the code as made available by
the licensor, whereas GPLv3 includes a patent license covering
licensee’s modifications that are within the scope of the patent
claims initially licensed by the licensor. See the OSI site at supra
n.8, GPLv3 § 11. It is worth noting that one does not have to
use the word “patent” to grant a patent license; for instance,
some proprietary software licenses provide a license grant
“under licensor’s intellectual property rights” (which of course
includes patents).
15. See discussion at supra n.2.
16. “These labels describe not different kinds of licenses, but
rather different categories of conduct which lead to the same
conclusion: an implied license. The label denotes the rationale
for reaching the legal result.” Wang Labs., Inc. v. Mitsubishi
Electronics America, Inc., 103 F.3d 1571, 1580 (Fed. Cir. 1997),
cert. denied, 522 U.S. 818 (1997).
17. Wang, 103 F.3d at 1581.
18. AT&T Corp. v. Microsoft Corp., 70 U.S.P.Q.2d 1141, 2004
U.S. Dist. LEXIS 1214, *15-16 (S.D.N.Y. 2004).
19. Wang, 103 F.3d at 1581-1582. See also AT&T, 2004 U.S. Dist.
LEXIS 1214 at *15-16 (citing cases).
20. AT&T, 2004 U.S. Dist. LEXIS 1214 at *13-14 (citing cases).
21. Wang, 103 F.3d at 1581.
22. TransCore, LP v. Electronic Transactions Consultants Corp.,
563 F.3d 1271,1273 (Fed. Cir. 2009).
23. Id.
24. Id. at 1279.
25. The doctrine may not be common, but it is not new. See
Preformed Line Prods. Co. v. The Fanner Manufacturing Co.,
225 F. Supp. 762, 781-782 (N.D. OH 1960), aff’d, 328 F.2d
265 (6th Cir.), cert. denied, 379 U.S. 846 (1964) (court granted
implied license by legal estoppel to an additional patent that
was not covered in the parties’ agreement but was needed
to practice the patents that were licensed: “even though not
expressly provided for in the agreement, where it is contem-
plated that the licensee shall be able to make, use and sell a
given device in a specified manner, the licensor is estopped
from asserting against the licensee any other patent which it
may then own or later acquire, the effect of which would be
to deprive the licensee of the rights bargained for.”).
26. It should be noted that these cases applying the doctrine typi-
cally involve underlying patent grants and later assertions of
patent infringement. Yet the rationale for the implied patent
license by legal estoppel does not rely on the underlying grant
also being a patent license. There’s nothing in the basic fair-
ness of the doctrine—you cannot give something in exchange
The Computer & Internet Lawyer • 5
Open Source
for consideration and then turn around and prevent the buyer
from enjoying its purchase—that would limit its application
to protecting only underlying patent licenses. Indeed, the
US Circuit Court of Claims encountered a case where the
underlying license allowed defendant to exploit an idea, rather
than a patent. The court nonetheless held that licensor was still
legally estopped from then negating that license by asserting
that exercising the license infringed a later-acquired patent.
AMP v. United States, 389 F.2d 448, 454 (Ct. Claims 1968);
Preformed Line Products, 225 F. Supp. at 782 (“It is a maxim of
the common law that one, granting a thing, impliedly grants
that without which the thing expressly granted would be use-
less to the grantee. This maxim is as applicable to grants of patent
rights as to other species of property.” (citing cases)) (emphasis
added). Hence, the fact that with open source licenses the
initial exchange involves a copyright license should not
matter. The open source licensor should not be able to pre-
vent licensee from enjoying the copyright license just because
licensor is using a different form of intellectual property (a
patent) to accomplish the derogation. See also Sony Corp. of
America v. Universal City Studios, Inc., 464 U.S. 417, 439
(1984) (noting “the historic kinship between patent law and
copyright law”).
27. Jacobsen v. Katzer, 535 F.3d 1373 (Fed. Cir. 2008).
28. Id. at 1379.
29. Id. at 1382.
30. The consideration needed to create an implied patent license
by legal estoppel does not have to be monetary at all. McCoy v.
Mitsuboshi Cutlery, Inc., 67 F.3d 917, 922 (Fed. Cir. 1995),
cert. denied, 516 U.S. 1174 (1996) (based on legal estoppel,
the court implied a license to sell patented knives: the patent
owner hired a manufacturer to make the knives, and the manu-
facturer conferred a benefit by making the knives, but then
patent owner refused to pay for or take delivery of the knives,
so based on legal estoppel the manufacturer had an implied
patent license to sell the knives to mitigate its loss. The court
noted that “the law may create an implied license to enforce
the contract obligations of the patent holder.”).
31. Even if there is no express or implied patent license at all, it still
might not matter. In Quanta Computer, Inc. v. LG Electronics,
Reprinted from The Computer & Internet Lawyer, August 2009, Volume 26, Number 8, pages 1 to 6,
with permission from Aspen Publishers, Inc., a Wolters Kluwer business, New York, NY,
1-800-638-8437, www.aspenpublishers.com.
6 • The Computer & Internet Lawyer
Inc., 128 S. Ct. 2109, 2121-2122 (2008), the Supreme Court
reaffirmed the doctrine of patent exhaustion, holding that any
sale of a patented item authorized by the patent owner would
extinguish the patent owner’s rights to control the subsequent
use or resale of that patented item, thereby eliminating the
purchaser’s need for an express or implied patent license:
“Exhaustion is triggered only by a sale authorized by the pat-
ent holder. . . . The authorized sale of an article that substan-
tially embodies a patent exhausts the patent holder’s rights and
prevents the patent holder from invoking patent law to control
postsale use of the article.” But is the distribution by the patent
owner under an open source license an “authorized sale” that
exhausts its patent rights? See, e.g., Telecomm Tech. Svcs., Inc. v.
Siemens Rolm Comms., Inc., 66 F. Supp. 2d 1306, 1323
(N.D.Ga. 1998) (denying summary judgment on claim that
Rolm exhausted its patents by selling patented PBX systems,
because whether license of Rolm PBX software and restricted
sales of PBX hardware exhausted patents raised issues of fact).
The distribution by the patent owner is certainly authorized,
and as discussed in the text there is economic consideration
flowing to the licensor under the open source license, as
might be required for a sale.Yet the open source license clearly
purports to be a license to the code, not the sale of the code.
There is much debate in the courts as to whether a perpetual
software license is really a sale or a license. See Nadan, supra
n.8, at 567-588, 589-621 (discussing why software is licensed,
and whether a software license is really a sale). If a software
license were considered a sale at least for patent purposes, it
would mean that the patent owner exhausted its patent rights
to control the licensee’s use or distribution of the open sourced
software, and thus no patent license (i.e., no permission from
the patent owner) would be needed.
32. Of course, any implied patent license would likely be limited
to patents overlapping (reading on) the software, not indepen-
dent patents that the licensee might infringe on its own. Like
most open source licenses that do include an express patent
grant (see supra n.14), an implied patent license might also not
cover modifications made by the licensee under the copyright
license, but only the acts of copying, using and distributing
the software in the form it was made available by the patent-
owning licensor.
Volume 26 • Number 8 • August 2009