Apple Is Indeed Patenting Swift Features
Here are two of the patents in question: 9,952,841 and 9,329,844.
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.
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.
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.
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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!
If Apple genuinely intends to use this only for defensive purposes, or as counter-suits against patent trolls, then they should put it under something like Twitter’s Innovator’s Patent Agreement, something that legally enforces the idea of only using the patent for defensive purposes.
Like most software engineers I’m not qualified to analyze what will or won’t infringe on a specific patent, so I’m not going to make any such claims, but attempting to patent programming language features from Swift is certainly a chilling move by Apple. @Chris_Lattner3, @tkremenek, and other (former/present) Apple people have emphasized how great this is for the Swift community, but that’s a very limited perspective. What about other languages? What about other communities? Is a new, from-scratch language design that uses optional chaining open to legal attack by Apple?
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I'm not thrilled here. I would love to see what exactly the terms of the patent licensing look like for non Swift users. I agree with @Kronopath and @Nathan Gray, this needs to be an "anyone can use it patent".
