Aplicaciones procesadas en modo batch

As discussed above, exhaustion of patent rights in copies of FOSS programs secure at most the right to use and resale the copy of a FOSS program in verbatim form (i.e. without any modifications) free from the FOSS licensor's exclusive patent rights. However, exhaustion does not from user's perspective solve all patent related concerns in connection with exploiting the copy of a FOSS program, as patent exhaustion does not provide the user with the right to make new copies of the FOSS program, irrespective of whether the question is of European or the US patent exhaustion doctrine. Therefore, if a FOSS licensor owns patent(s) reading the FOSS program, the FOSS licensee using the copy of a FOSS program must still secure the right to make new copies of the program, in order to be able to fully exploit the program within the express copyright grants included in the FOSS licenses subject to this study.

Further, under the US exhaustion doctrine, if the FOSS program is distributed online through the Internet, and not embodied on a tangible media, it is possible that as the said distribution does not amount to sale of software (under the elements established in the copyright context), it is possible that patent rights in a copy allowed by the FOSS licensor to be downloaded from the Internet are not exhausted in the first place, unlike

in Europe. If that is the case, an additional instrument is needed to secure even the mere rights to resell the program under the GPLv2 and the MIT license, in addition to the rights to make new copies of the program under all of the FOSS licenses subject to this study.

Finally, application of the European and – at least for now – also the US patent exhaustion doctrines results in territorial exhaustion of the rights to use and resell the patented article. Under the European patent exhaustion doctrine, European patent rights (whether the question is of a national patent and/or EPO patent) are exhausted in the whole EEA (or in case of or unitary patents, the participating member states) based on sale of a copy of a patented FOSS program in the EEA. Accordingly, under the US patent exhaustion doctrine, US patent rights are exhausted only in the US based on sale of a copy of a patented FOSS program in the US. Thus, the outcome is regional

exhaustion of patent rights, which, in turn, leads to fragmented loss of rights to enforce

the patent rights of the patent holder exhausted by global sales of products covered by patents in different jurisdictions, preventing also distribution (importation) of copies of patented FOSS programs into a territory, where the copies are not (yet) put on markets by the patent holder and/or its authorized licensee.

Interestingly, in case of copyright exhaustion, the copyright license grants included in the FOSS licenses subject to this study, would result in that copies made by users under and in compliance with the FOSS licenses would, most likely, be held copies made with the consent of the copyright holder (under the European copyright exhaustion doctrine) or lawful copies (under the US copyright exhaustion doctrine). Since the FOSS licenses subject to this study do not include any territorial restrictions, the first authorized sale of a copy of a FOSS program would result, as the lawful copies are spread across territories, in practice exhaustion of the distribution right on an international basis, which outcome in the US where SCOTUS affirmed that copyrights are subject to the principle of international exhaustion.613

4.2.2.4 Analysis of the Findings

Even if the doctrine of patent exhaustion would trigger exhaustion of patent rights in a copy of a FOSS program sold, licensed and/or redistributed by FOSS licensor under and in compliance with the respective FOSS license, thereby triggering the rights to use and resell the respective copy of the FOSS program free from any patent claims, due to territoriality of patents and related doctrine of exhaustion, the exhaustion of patent rights would – from users' perspective – at best result in fragmented freedom to exercise patent rights embodied by (the copy of) the FOSS program: Apart from Japan following the principle of international exhaustion, patent exhaustion is often considered to be of territorial nature: patent rights in (copies of) FOSS programs sold in the US would likely be exhausted only in the US with the caveat of developing case law: it must be remembered that at the moment, there is some debate on whether the US doctrine of patent exhaustion could result in an international exhaustion of the patent rights. We await SCOTUS to provide us with more clarity on this point of law, as it granted

certiorari in a pending Lexmark case.614 _{However, it is clear that the European patent}

exhaustion doctrine results in exhaustion only in the EEA, or in case of unitary patents, in the participating member states. Accordingly, even national patent rights in a copy in a FOSS program sold, licensed and/or redistributed by FOSS licensor under an in compliance with the respective FOSS license within the EEA would be exhausted within the whole EEA, but not beyond that territory. Therefore, use and sale of the FOSS program outside of the respective territory, where the patent rights are exhausted, could result in infringement of the patent holder's exclusive rights to use, make, sell and/or import the patented article.

To put exhaustion of rights into perspective, sale of a copy of computer program results in an international exhaustion of copyrights in the copy under the US doctrine of copyright exhaustion. As ruled by the Court of Appeals for the Ninth Circuit in Vernor v. Autodesk and latest affirmed by SCOTUS in Kirtsaeng v. John Wiley & Sons, the US follows the principle of international exhaustion of copyrights. However, despite that also Finland used to follow the principle of international exhaustion of copyrights, today

sale of a copy of a computer program in EEA triggers of exhaustion of copyrights the copy within the EEA, not internationally.615 Further, as patent exhaustion doctrine does not give the right to make new copies of the patented FOSS program, an important right expressly granted under copyrights of the FOSS licensor in accordance with FOSS licenses subject to this study, exhaustion does not result in meaningful dilution of FOSS licensor's patent portfolios and therefore does not provide complete protection with FOSS users against potential patent claims raised by FOSS licensors.

Obviously the several uncertainties as to the application and insufficient extent leaving

making, using and selling new copies of the FOSS program unauthorized as well as the

territorial nature of patent exhaustion doctrine preventing importation of copies beyond

the respective territory were also recognized within the FOSS community: In order to

mitigate the concerns related to the functioning of the patent exhaustion doctrine in different jurisdictions, a new section, also called as "the uniform rule of patent

exhaustion" was introduced into the GPLv3§10 in connection with the latest revision

round of the GPL.616 _{The uniform rule of patent exhaustion expressly prohibits FOSS}

licensors from enforcing patent claims against those to whom the GPLv3-licensed code is distributed, precluding thus both FOSS contributors and FOSS distributors from asserting their patent rights against FOSS users. The exhaustion rule also prohibits FOSS licensors from imposing additional restrictions on downstream licensees such as demands for acceptance of patent licenses or payment of patent royalties. Further, the exhaustion rule includes a mechanism of "entity transaction", under which the patent license undertakings given by one organization will automatically follow to the acquiring entity in connection with any transaction, whether involving a share deal, an asset deal or a merger.617

It is important to note that the uniform patent exhaustion rule covers both FOSS contributors and mere FOSS distributors and results in exhaustion of patent rights embodied by the respective FOSS program subject to the GPLv3 irrespective of the

615 _{Article 4(2) of the Software Directive. Harenko, Niiranen, et. al. at 157-158.} 616 _{Moglen & Choudhary at 27-28}

national rules of patent exhaustion in each jurisdiction. Because it results in exhaustion also in connection with redistribution of FOSS not amounting to sale of FOSS, its impact is essentially broader to what is constituted by ordinary territorial exhaustion of patent rights.

It is evident the exhaustion of patent rights results only a rather limited exposure to patent holder's portfolio even in connection with FOSS, and therefore does not solve users' all concerns related to potential infringement of FOSS licensor's patents when using FOSS under the BSD, the MIT and/or the GPLv2 licenses. Additional legal instruments are needed by users to secure exploitation of each exclusive right held by the patent holder with respect to the copy of the FOSS program released under those licenses. This is important considering also that the express license grants included in the FOSS licenses subject to this study are copyright grants. Therefore, even if exhaustion of copyrights results in exhaustion of mere distribution right, the copyright grants provide rights to copy and modify the FOSS program and distribute modified versions of the FOSS program without territorial restrictions. However, the license grants included in the FOSS licenses subject to this study do not expressly permit using, making or selling new copies of the FOSS program under patents of the FOSS contributor and/or distributor. Therefore, the question of patent rights in connection with FOSS licensing should be reviewed also from the perspective of implied patent license doctrine as existing in the US. For comparison, the possibility of existence of implied licenses is also examined form the perspective of the general principles of contract law in Finland.

PICTURE 10: PATENT EXHAUSTION IN CONTEXT OF FOSS

1 First sale of original copy 2 Resale of original copy 3

3 First sale of new (infringing) copy

FOSS Licensor (Patent Holder) FOSS Licensee (First Acquirer) FOSS Licensee (First Acquirer) Licensor EPO Patent 2 Licensor US Patent 3 Licensor US Patent 1

Copy of a Patented FOSS Program released by FOSS Licensor in the EEA and/or

the US

PICTURE 10: PATENT EXHAUSTION IN THE US

Release under a FOSS license (Arrow 1) of a copy of a patented FOSS program by (or under the authorization of) Patent Holder (FOSS Licensor, i.e. a contributor and/or distributor) to FOSS Licensee under and in compliance with the FOSS license exhausts certain patent(s) rights in the copy of the patented FOSS program.

In this scenario, the copy of the patented FOSS program practices Patent 1 and includes the essential features of Patent 2, but does not practice Patent 3 nor include its essential features. Consequently, release of the copy of the FOSS program within the EEA exhausts rights in Patent 2. Authorized sale of the copy of the FOSS program in the US exhausts rights in Patent 1, but does not exhaust rights in Patent 3, since the copy does not practice and/or embody the essential features of Patent 3. Neither of the scenarios permit making a new copy of the FOSS program by FOSS Licensee under the patent exhaustion doctrine, due to which making and selling a new copy by FOSS licensee (Arrow 3) is always prohibited, unless the FOSS licensee is able to secure additional patent licenses from the patent holder(s)'by operation of law and/or contract.