Patent rights: BSD-3-Clause-Clear vs BSD-3-Clause

Question

While the BSD-3-Clause is well known and thoroughly discussed here and elsewhere, I have been unable to find much information on precisely how the additional patent stipulation in the BSD-3-Clause-Clear might change the license terms (if at all).

The BSD-3 Clear is essentially the same as the BSD-3, except for the line (following the 3rd clause):

NO EXPRESS OR IMPLIED LICENSES TO ANY PARTY'S PATENT RIGHTS ARE GRANTED BY THIS LICENSE.

The BSD-3-Clause is my default license for my projects, but ever since I discovered the "Clear" version, I've been using that.

My understanding was that it added additional protections to my beloved BSD-3 licence against potential malicious patent bullying/trolls. As in, if you use or modify code licensed under the BSD-3-Clause-Clear, you would not be able to patent that modified code (and by extension, enforce that patent against other derivations or contributors).

There have been some great threads here explaining what exactly is meant by "express grant of patent rights" clauses in licenses (notably Apache 2.0), but I still have trouble understanding what patent rights mean.

Can someone really dumb it down for me?

• What does that clause mean?
• How does it differ from the express grant of patent rights in licenses like Apache 2.0?
• Does it fundamentally change anything about the original BSD-3-Clause?

Answer 1

Your understanding is incorrect.

Patents are intellectual property rights that exist to protect an invention. They are distinct from copyrights, which protect the expression of an idea.

Inventions protected by patents can have a software component (or in some cases be completely covered by software). The additional text in the BSD-3-Clause-Clear license makes it explicit that if the software is also covered by a patent, then everybody must request a separate patent license from the patent holder to be able to use the software.

This is no different from the regular BSD-3-Clause license, although there it is possible to use a defense when you are sued for patent infringement that there could have been an implied patent license.

The situation is the exact opposite of the patent clause in the Apache 2.0 license. The Apache 2.0 license grants you a patent license in addition to the copyright license, while the BSD-3-Clause-Clear license makes it explicit that there is no such combined license.