The current patent defense (or so-called ‘patent peace’) clause is strongly worded, to provide maximum protection to developers, by providing them with a negotiating asset in the event they were sued for patent infringement. The assumption was that, in general, developers would not have patents to use as counterclaims. Thus, their primary leverage would come from the assertion of copyright claims if required. Overall, the intention was to create a patent-free sandbox where MPL-licensed technology could flourish.
Over the years, a number of potential contributors have raised concerns about various aspects of the scope and clarity of this clause.
Specific Potential Topics
- Section 8.2(b) applies to suits over any code, not just the Covered Code, unlike similar clauses in other licenses, such as Apache and GPL v3.
- Section 8.2(b) is retroactive, unlike similar clauses in other licenses.
- Section 8.2(a) terminates the copyright license as well as the patent license, unlike patent defense clauses in other licenses.
- The definition of patent claims is not as extensive as in some other licenses; e.g., GPL v3 includes patents which are licensed from third parties.
- The definition of patent litigation may not cover some common modern patent practices, such as declaratory judgment actions or requests for re-examination.
- The two-prong approach, where the patent defense clause is broken into two different parts with slightly different triggering conditions and slightly different penalties, has been confusing to some readers.
