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CDDL and patents

The Common Development and Distribution License (CDDL) is a software licence for distributing software as free software. It is very loosely based on the Mozilla Public License 1.1.

Can you help? We should really summarise whether the CDDL's patent clauses are good or not so good

Patent clauses

Patent grant and limits

1.11. “Patent Claims” means any patent claim(s), now owned or hereafter acquired, including without limitation, method, process, and apparatus claims, in any patent Licensable by grantor.

And Section 2.1 says:

the Initial Developer hereby grants You a world-wide, royalty-free, non-exclusive license: [...] under Patent Claims infringed by the making, using or selling of Original Software, to make, have made, use, practice, sell, and offer for sale, and/or otherwise dispose of the Original Software (or portions thereof).

(I find the grammar very strange. What relation does "under" describe between the grant and the infringed claims?)

Later in section 2.1, this grant is limited:

no patent license is granted: (1) for code that You delete from the Original Software, or (2) for infringements caused by: (i) the modification of the Original Software, or (ii) the combination of the Original Software with other software or devices.

Retaliation clause

Retaliation are a minor way to attack patent holders who attack software distributors. The CDDL includes this retaliation clause:

6.2. If You assert a patent infringement claim (excluding declaratory judgment actions) against Initial Developer or a Contributor (the Initial Developer or Contributor against whom You assert such claim is referred to as “Participant”) alleging that the Participant Software (meaning the Contributor Version where the Participant is a Contributor or the Original Software where the Participant is the Initial Developer) directly or indirectly infringes any patent, then any and all rights granted directly or indirectly to You by such Participant, the Initial Developer (if the Initial Developer is not the Participant) and all Contributors under Sections 2.1 and/or 2.2 of this License shall, upon 60 days notice from Participant terminate prospectively and automatically at the expiration of such 60 day notice period, unless if within such 60 day period You withdraw Your claim with respect to the Participant Software against such Participant either unilaterally or pursuant to a written agreement with Participant.

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