Patent litigation retaliation clause in Apache 2.0 vs MPL2

Question

The Apache License 2.0 has the following in Section 3:

If You institute patent litigation against any entity (including a cross-claim or counterclaim in a lawsuit) alleging that the Work or a Contribution incorporated within the Work constitutes direct or contributory patent infringement, then any patent licenses granted to You under this License for that Work shall terminate as of the date such litigation is filed.

The Mozilla Public License 2.0 (MPL2) has the following in Section 5.2:

If You initiate litigation against any entity by asserting a patent infringement claim (excluding declaratory judgment actions, counter-claims, and cross-claims) alleging that a Contributor Version directly or indirectly infringes any patent, then the rights granted to You by any and all Contributors for the Covered Software under Section 2.1 of this License shall terminate.

If we compare the patent litigation retaliation clauses quoted above, Apache 2.0 includes cross-claims and counter-claims, while MPL2 excludes them.

Also, MPL2 explicitly mentions "declaratory judgment actions", while Apache 2.0 does not.

What exactly is then the impact of these differences to the licensor and licensee, when the licensor uses Apache 2.0 vs MPL2?

Please help me understand this. I am not legally trained. Thanks.

Answer 1

A patent owner can sue for infringement. That is covered by both wordings. A random entity can't sue the patent holder out of the blue, but if a patent holder threatens the entity with an infringement enforcement action, then the entity can institute a "Declaratory" suit that says, I do not want this threat hanging over my head, I will initiate proceedings rather than waiting for the patent holder to do so.

Counter claims and cross claims would be actions in response to some other entity first coming after you.

One wording covers any kind of patent enforcement action and the other only covers an initiator of the process not actions that might be seen as defensive.