Apple is indeed patenting Swift features

Here is the patent that includes optionals chaining:
9,952,841

This is very disturbing. It's like Apple has gone insane. Computer languages are not supposed to be owned by any company. We learned this mistake with Java and APIs. Computer languages are supposed to be a part of the Commons, owned by everyone for the benefit of humanity, not the benefit of a greedy corporation.

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I mean, yeah, software patents were a stupid idea, but it's not like them holding a patent for optional chaining matters that much since they released the code that implements it under the Apache license. Honestly, the only possible reason to even have a patent for this is to keep the patent trolls away.

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i'm confused

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Apache license gives the right to use patents required to use the code (assuming the original author had those rights), and the code implementing optional chaining in the compiler is Apache licensed. So, the only thing Apple having a patent on optional chaining does is to stop frivolous suits from patent trolls. It can't be used for any kind of nefarious power play by Apple, which is what OP was worried about.

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I would like to hear an Apple attorney confirm this theory and explain whether this was Apple's intention.

I always wondered why Apple thought a new language was required, not that Swift isn't interesting but still, it is odd that they introduced it and didn't mention that they patented it.

Also, the patents cover more than just optional chaining. There are two:
9,952,841 issued in 2018
9,329,844 issued in 2016
Presumably there are more that are pending.

By the way here is a list of Apple patents pending, the public ones anyway.
I see there an attempt to patent an API, and if I recall, the issue of copyrighting APIs came up in the Java lawsuit between Oracle and Google.

https://patents.justia.com/company/apple?list=applications

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Prior Art would take care of that if Apple had not gotten a patent on Optional Chaining (the Google patents page for US9952841B2, which was the only result I could find for the number given by @ebup, reads to me more like the whole concept of Swift, but I may be misunderstanding).

From a quick search (IANAL, also not from US, so salt to taste), I could also not find a consensus on whether the patent grant in the Apache license extended to derivative works and unrelated works. This StackExchange answer makes it sound like it does not, which as I read it could mean that Apple could still require a patent license if another project wanted to incorporate Optional Chaining.

Here is the patent grant section of the license:

3. Grant of Patent License . Subject to the terms and conditions of this License, each Contributor hereby grants to You 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 such Contributor that are necessarily infringed by their Contribution(s) alone or by combination of their Contribution(s) with the Work to which such Contribution(s) was submitted. 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.

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@ahti
The worrying thing is that Apple did some things that in combination look bad:

a. they encouraged people to adopt Swift, even going so far as to release Swift before it was ready for production use;
b. they didn't warn people that using some feature or other might in future require a patent royalty payment;
c. they didn't come out publicly and say "here is our policy" about these patents to put people at ease.

So worst case, it could be argued Apple engaged in a deceptive business practice that is nevertheless legal because ... patents.

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You never need a patent grant just to make derivative works. Restricting the creation of derivative works is not part of the monopoly granted by a patent. If I've patented The Wheel, you are free to separately make — and patent! — The Axle, The Tire, and The Wheelbarrow; you just can't make your own wheels until my patent runs out.

a. they encouraged people to adopt Swift, even going so far as to release Swift before it was ready for production use;
b. they didn't warn people that using some feature or other might in future require a patent royalty payment;
c. they didn't come out publicly and say "here is our policy" about these patents to put people at ease.

By licensing its contributions under the Apache license, Apple has granted you a perpetual, royalty-free license to use all of its patents that are necessary in order to use Swift. That is a legally-binding statement written plainly in the license text. Your complaint is that we didn't make a second, non-legally-binding statement about our "policy" which promises to never charge you a royalty that we've already legally given up our right to charge. Even if we made that statement, I can't imagine why you'd trust it more than the plain terms of the license. I can only encourage you to talk to an IP attorney who hopefully can explain these things to you in a way that you do trust.

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The intention of using the Apache 2 license goes beyond this as well. This isn't just about Apple's contributions to the Swift project, but any company that has a significant patent portfolio such as IBM and Google. A contributor whose contributions implies one or more of their patents is effectively contributing the use of those patents to the Swift open source project. This was intentional and by design.

Any company making a contribution to Swift is intentionally licensing implied patents to the project. This is a business decision. Speaking on Apple's behalf, that business decision is clear and deliberate: we want Swift to be successful and to be used widely. The Apache 2 license provides a form of IP licensing as well as IP protection for the project, and thus its users.

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I understand that there's a ton of legal implications, but hope someone could help with this even with "I am not a lawyer" disclaimer. Would anyone be able to clarify a few points here please?

  1. If a separate open-source programming language under Apache 2.0 license implements an optional chaining feature, would it be a violation of the patent then?
  2. What if there's a separate implementation of a Swift compiler developed from scratch independently from Apple, does mean that it's not able to implement optional chaining without licensing the patent?
  3. Here's the most interesting part: let's say there's a fork of a Swift compiler that significantly diverged and is developed independently from Apple. It seems to me that forks like these still don't violate the patent, otherwise any GitHub fork with unmerged PRs would be a violation. But let's say Google's fork no longer wishes to contribute its changes upstream, at what point does this separate development could trigger a patent violation? Does amount of divergence have any impact, let's say 90% of the codebase changes? Does the name of project matter, if someone names their fork as "Sparrow", not "Swift" is it considered a patent violation at this point if there's no license and royalties paid for optional chaining?
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Sorry, I'm not sure I understand this. If optional chaining was open-sourced before any patent on it was claimed by Apple, it would make any subsequent attempt by patent trolls to attack it invalid via prior art:

If an invention has been described in the prior art or would have been obvious over what has been described in the prior art, a patent on that invention is not valid.

If I understand this correctly, Apple didn't need to patent it for any "defence", just open-sourcing it and making "prior art" was enough. But as a contributor to Swift's ecosystem I feel unsafe now as we have a precedent of Oracle ruining Java's ecosystem with its patents. Can we be sure that Apple never ever does this to any 3rd-party open-source project related to Swift as a "business decision"?

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Prior art has been meaningless in US patent law for several years and has been replaced by first-to-file. In addition to the legal clarity that filing would have lent even when prior art had meaning, this is a huge reason why defensive patents must now be filed, especially for ideas intended to be a gift to the public.

Caveats: I am not a lawyer. Further, I am employed by Apple in an engineering capacity, but do not represent any officially held position. Thus, my comment above is both a non-professional and a personal opinion on a legal matter and should be lent as little gravitas as that implies even though it is also correct. ;-)

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Unfortunately, while it may protect again patent troll, it does not protect us from all kind of trolls ;-)

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Disclaimer: I'm not an apple employee and not am not lawyer, this is just my understanding of the situation having spent lots of time talking to lawyers and other experts about this:

I agree with much of the sentiment that software patents are often silly and the system is broken in many ways. This patent is a reasonable example of that (patenting syntactic sugar for monads, really?). I have no idea if there is prior art, but I wouldn't be surprised. For sake of discussion, lets assume the patent is valid.

Even if I and others don't like it, the software patent system exists. As is pointed out upthread, one of the major reasons that Swift uses the Apache 2 license is to provide more certainty for the community w.r.t. licensing and patents. An additional bonus of the Apache 2 license is that the open source project as a whole benefits from companies having and contributing their patents under the terms of the license: to say more directly, it is good for the Swift project that Apple has this patent and has contributed it to the project.

The reason for this is the Apache patent revocation clause, the end of bullet 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.

This basically says that if someone sues someone else over Swift then they lose access to the patents contributed to the project, and are therefore subject to countersuits. This is a significant part of the protection that the Apache license provides (it is a big deterent to lawsuits in general) but it only has teeth if there are actually patents in play!

The LLVM.org community is actively working on a multi-year relicensing effort specifically to achieve these sorts of protections for LLVM as well.

-Chris

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Thanks for the clarification @Chris_Lattner3! There's still a main concern here that this seems good only for the only Swift implementation from Apple and Apple's business at the expense of other open-source projects. In my understanding (please correct me if I'm wrong, this specific point is what's mainly interesting to me) is that an alternative open-source implementation of a Swift compiler developed from scratch or an open-source language made compatible with Swift through features described in the patent would infringe on the patent. That's because these projects wouldn't be covered by the license and count as Derivative Work (even if these projects use Apache 2.0 as well) due to this clause:

For the purposes of this License, Derivative Works shall not include works that remain separable from, or merely link (or bind by name) to the interfaces of, the Work and Derivative Works thereof.

Obligatory I Am Not A Lawyer disclaimer comes here, but that's why I would like this to be clarified as much as possible to understand the implications.

I am surprised that optional chaining was granted a patent. It is similar enough to prior art in Scheme that I would not have granted it. See and-let*:

https://www.gnu.org/software/mit-scheme/documentation/mit-scheme-ref/and_002dlet_002a-_0028SRFI-2_0029.html

if c had the same restrictions/patents as this, then there would never have been a clang compiler would there? i guess there will never be independent implementations of swift...

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What about companies (such as us) implementing the Swift language from scratch?

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It strikes me that while Apache licensing creates more certainty for users of Swift, it actually reduces the diversity of the ecosystem overall.

Now if someone wants to make something Swift-ish with features that "infringe" on the patents granted to Swift, they now have exposure to patent litigation.

I can't decide if this exposure is unfortunate collateral damage or brilliantly disguised subterfuge.

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