According to an article by Kyle E. Mitchell, the biggest difference between the Blue Oak Model License and the BSD-2-Clause Plus Patent License is that the former "gives even broader patent assurance".

Here's the relevant section on patents in the BSD-2-Clause Plus Patents License:

Subject to the terms and conditions of this license, each copyright holder and contributor hereby grants to those receiving rights under this license a perpetual, worldwide, non-exclusive, no-charge, royalty-free, irrevocable (except for failure to satisfy the conditions of this license) patent license to make, have made, use, offer to sell, sell, import, and otherwise transfer this software, where such license applies only to those patent claims, already acquired or hereafter acquired, licensable by such copyright holder or contributor that are necessarily infringed by:

(a) their Contribution(s) (the licensed copyrights of copyright holders and non-copyrightable additions of contributors, in source or binary form) alone; or

(b) combination of their Contribution(s) with the work of authorship to which such Contribution(s) was added by such copyright holder or contributor, if, at the time the Contribution is added, such addition causes such combination to be necessarily infringed. The patent license shall not apply to any other combinations which include the Contribution.

Except as expressly stated above, no rights or licenses from any copyright holder or contributor is granted under this license, whether expressly, by implication, estoppel or otherwise.

And in the Blue Oak Model License:

Each contributor licenses you to do everything with this software that would otherwise infringe any patent claims they can license or become able to license.

Are there any significant patent rights that are granted in the Blue Oak License that are not granted in the BSD-2-Clause Plus Patents License? Any insight on this would be highly appreciated!


1 Answer 1


The simple language of the Blue Oak grant appears to give you more rights than the BSD License, but it might not hold up in court.

The BSD License states, in legalese, that when you own a patent and you make a contribution that causes the software you contribute to to infringe upon your patent, then you must give a patent license for the patent that is infringed upon.

As it must be a contribution from the patent holder, they should abstain from making that contribution if they don't want to license their patent. That is a very clear and reasonable choice, where you can make a decision based on the costs and benefits of each option.

The Blue Oak patent clause on the other hand can be construed as to mean that if I am a contributor who has made a non-infringing contribution with regard to a patent that I hold and someone else makes a contribution that causes the software to infringe, then I am supposed to have given a license to my patent. Even if my contribution was in no way related to that patent.

If that interpretation is accepted, it would put a bomb under the whole concept of patents. And the risk of such an interpretation being accepted would make any organization holding a patent very reluctant to contribute to a project with the Blue Oak Model License, because you might just grant anyone the right to run away with your patent.

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    Might an alternative interpretation of the BSD clause be that the non-infringing contributor grants rights to any patents they hold which the software infringed at the point that they distributed it? In which case if they distribute it, and someone else adds a contribution which infringes their patent, it would be infringement, but if the patent holder where to take that change and distribute it, they would implicitly endorse the infringing change as containing rights to their patent? Apr 3, 2023 at 12:12
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    Since 'this software' prior to the infringing contribution, and 'this software' after the infringing contribution refer not to the same work, but to a derived work of the first case in the second case. Apr 3, 2023 at 12:15
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    @user1937198, That might be an interpretation of the simple Blue Oak text, but not of the more legally rigorous BSD text. Apr 3, 2023 at 12:33
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    Yep, I was confused by the incorrect attributions. Apr 3, 2023 at 13:21
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    Another big difference between the licenses is, that the BSD-2-Clause Plus Patents License limits the patent license to the claims that are necessarily infringed (in other licenses called "essential patent claims" while the Blue Oak Model License refers to any patent claim. Apr 4, 2023 at 14:38

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