Many CLAs contain the below clause that is more or less taken from the Apache2 license:
Grant of Patent License. Subject to the terms and conditions of this Agreement, You hereby grant to ACME and to recipients of software distributed by ACME a perpetual, worldwide, non-exclusive, no-charge, royalty-free, irrevocable (except as stated in this section) patent license to make, have made, use, offer to sell, sell, import, and otherwise transfer the Work, where such license applies only to those patent claims licensable by You that are necessarily infringed by Your Contribution(s) alone or by combination of Your Contribution(s) with the Work to which such Contribution(s) was submitted. If any entity institutes patent litigation against You or any other entity (including a cross-claim or counterclaim in a lawsuit) alleging that your Contribution, or the Work to which you have contributed, constitutes direct or contributory patent infringement, then any patent licenses granted to that entity under this Agreement for that Contribution or Work shall terminate as of the date such litigation is filed.
I am unsure about what this means in a scenario where
- A project we contribute to does infringe some patent of my company
- My contribution does not contain or touch those code parts
If I read this correctly
[...] that are necessarily infringed by Your Contribution(s) alone or by combination of Your Contribution(s) with the Work to which such Contribution(s) was submitted [...]
my contribution has to infringe that patent and if it does I grant the license. So the question is - when is a patent considered to be infringed? If I just change a typo?
Our lawyers take is:
- if we sign the CLA
- and contribute to a project that infringes one of our patents in any way
- we will grant the license
Consequently, we have to check each project we contribute to for potential patent violations. (which is pretty much impossible)