The Apache License, Version 2.0 and the Anti-Patent Treachery Clause

Apache software helped build the web. Beginning in the mid-nineties a decentralized group of programmers built a free and open source web server that anyone could download and use. They were not the first programmers to offer FOSS, but their product was, and still is, hugely successful, demonstrating the power of open source software. It is estimated that more than half of all websites use an Apache server.

As part of their effort, Apache created a software license, which spells out the terms and conditions of using their software, and basically what the people of the Apache Software Foundation consider optimal from a development and public policy point of view.

Any programmer may also use this license to designate the terms of using their software, whether it is related to Apache products or completely independent. All you need to do is insert the following text in the comments at the top of your source code.

/************************************************************
Copyright [yyyy] [name of copyright owner]  

Licensed under the Apache License, Version 2.0 (the "License"); you may not use this file except in compliance with the License. You may obtain a copy of the License at      

http://www.apache.org/licenses/LICENSE-2.0

Unless required by applicable law or agreed to in writing, software distributed under the License is distributed on an "AS IS" BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, either express or implied. See the License for the specific language governing permissions and limitations under the License.

************************************************************/

If you go to the link and read Section 3, you will see the anti-patent treachery clause. It is not called “patent treachery” in the text of the license, but it is sometimes referred as such by third parties, and it was probably the hook that got you to read this far.

The clause does two things. First, it licenses all patents related to the Apache-licensed software, owned by any contributor, to everyone. Second, it creates a disincentive for any contributor to sue for patent infringement over Apache-licensed software. If a contributor sues, he forfeits his patent licenses from other contributors spelled out in the first sentence of the clause.

What is the effect? I assume the intended effect is to limit software patent law infringement law suits. But I’m not sure that this is the case.
Basically, if a contributor sues for patent infringement, he will effectively be barred from using any Apache-licensed software, under threat of patent infringement from other contributors.

It gets confusing here. If a second contributor sues the first aggressor, will the second contributor also lose all patent licenses granted under the clause? (Notice that all “cross-claims and counterclaims” are included.) Also, what incentive will a plaintiff have in suing the first aggressor for patent infringement? Remember, the proposed plaintiff would be suing over software that he contributed with the intention of sharing it with the world, and is likely not interested in litigating.

I don’t think the clause will directly prevent any software patent litigation. The majority of plaintiffs are either non-practicing entities (trolls), or large corporations that produce proprietary software. The trolls will not be affected, as they don’t actually create software and thus do not use Apache-licensed code. The large corporations are sophisticated and wealthy enough to avoid the issue. They can develop or license commercial software that performs similarly to the Apache-licensed software.

The real impact of the clause is as an affirmation of open source culture. It notifies all who use the Apache-licensed code that software patents are an issue, which inhibit the development of open source platforms. When a programmer licenses his software under the Apache license, he is clearly standing in opposition to software patents.