Does anyone have any hard evidence what exactly are the terms and conditions of the patent license that Dr. Whyte / OnBoard Security has pledged to provide to any prospective implementers of the Falcon cryptosystem?
I was only able to find the following IP Statement, which only says that the terms (whatever they are) will be royalty-free and fulfil so-called "RAND" criteria, the Wikipedia page on which cites several articles, arguing that this scheme is *absolutely not* a subset of libre, even when it is royalty-free (gratis). Really, this is a question of whether the Falcon cryptosystem is "open source" at all, or only "source-available freeware"!
I, William Whyte, am the … authorized representative of the owner, OnBoard Security, of the following patent(s) and/or patent application(s): US 7308097 B2 (“Digital signature and authentication method and apparatus”), and do hereby commit and agree to grant to any interested party on a worldwide basis, if the cryptosystem known as Falcon is selected for standardization, in consideration of its evaluation and selection by NIST, a non-exclusive license for the purpose of implementing the standard[,] without compensation and under reasonable terms and conditions that are demonstably free of any unfair discrimination.
I further do hereby commit and agree to license such party on the same basis with respect to any other patent application or patent hereafter granted to me, or owned or controlled by me, that is or may be necessary for the purpose of implementing the standard.
–Page 20, NIST Post-Quantum Cryptography Selected Algorithms 2022, Digital Signature Algorithms - Falcon - IP Statements
The above doesn't look like terms or conditions of a patent license to me; it looks like a binding pledge to provide a patent license under under-specified terms and conditions in the event it's selected for standardization (which it actually was). But I can't seem to find the follow-through document actually specifying these T&C anywhere on Google. Even the PQClean
LICENSE document for Falcon doesn't have anything less ominous than what I've said so far.
The reference implementation was published by the patent holders under the MIT license, but that license is ambiguous on patent rights, and when I asked the Falcon Project whether this was meant to include an implied patent license, the response I got declined to clarify, citing the vagueness of NIST's direction on the matter.
I want to reiterate that it's not obvious to me that the T&C finally offered in fulfilment of this pledge will necessarily be libre; the only guarantee I can see is they'll be gratis. (The patent license's associated T&C will also be “free of unfair discrimination”—but that's cold comfort if everyone's subjected to the same, subjectively-unreasonable terms!)
Remember: this issue *cannot* just be sidestepped with a clean-room implementation from the public spec, because the threat here is one of patent, not copyright. The patent license terms are something even a clean-room implementation will be subject to, even if the patent license terms ("RAND" though they may be) aren't OSI-approved, for example. Not even an implementation written by Richard Stallman himself would be free of these conditions!
I'm sure it's "probably fine", but this just feels very weird to me and I'd feel much more comfortable if I could actually find the terms of this patent license in writing somewhere.