Converting/Splitting Code - Open to Closed

Lawrence E. Rosen lrosen at
Wed Feb 14 20:44:33 UTC 2001

I intentionally quoted the patent law without interpretation.  At least some
of the follow-on questions you raise should be directed to your own
attorney, in the context of a specific set of facts for specific software,
for an authoritative answer.

The patent act does not define "publication" but the copyright act does:

  "Publication" is the distribution of copies or phonrecords of a work
  to the public by sale or other transfer of ownership, or by rental,
  lease, or lending.  The offering to distribute copies or phonorecords
  to a group of persons for purposes of further distribution, public
  performance, or public display, constitutes publication.  A public
  performance or display of a work does not of itself constitute

There is probably case law to interpret the word "publish" in the context of
the patent law but I'm not able to do that research for you now.  I'm sure
there is also case law to define what is meant in the patent law by "use."

/Larry Rosen

   > -----Original Message-----
   > From: Dave J Woolley [mailto:david.woolley at]
   > Sent: Wednesday, February 14, 2001 9:11 AM
   > To: license-discuss at
   > Subject: RE: Converting/Splitting Code - Open to Closed
   > > From:	Lawrence E. Rosen [SMTP:lrosen at]
   > >
   > >    (a) the invention was known or used by others in this country,
   > >    or patented or described in a printed publication in this or
   > >    a foreign country, before the invention thereof by the applicant,
   > >    or
   > >
   > [DJW:]  That seems to raise a couple of questions:
   > - should open source code be published in printed, as well a
   >   machine readable form, to improve the chance that code
   >   produced outside the USA would count for the above;
   > - does typical program source code "describe" its intellectual
   >   property.
   > On another tack, does use have to be productive, or could
   > one cover oneself by running a regression test that excercises
   > all the code in the US?
   > --
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