Converting/Splitting Code - Open to Closed

Ravicher, Daniel B. DRavicher at
Thu Feb 15 22:27:47 UTC 2001

There are a lot of good US companies that patent their software and then
license them under an open source patent license.  Need I reference more
than IBM to convince you that patents and open source are not, regardless of
the rhetoric, incompatible?

If software is released under the GPL, it's source code has been published,
thus barring any patent anywhere, except in the US, which gives only 1 year
from publication to file.  Further, the US doesn't just give out patents to
any one, the inventor must prove novelty and non-obviousness.  Plus, once
the patent is issued, the inventor cannot rest easy at night, because in
litigation the validity of the patent will be called even further into
question.  Reference Amazon's recent loss to B&N over the one-click patent.

And remember, although the US is only 5% of the world's population, we
represent 50% of the world's wealth.  This is partly because of, not in
spite of, our respect for innovation and the resulting granting of rights to
those who aid in the progress of science and the arts.

-----Original Message-----
From: SamBC [mailto:sambc at]
Sent: Thursday, February 15, 2001 4:34 PM
To: Ryan S. Dancey; license-discuss at
Subject: Re: Converting/Splitting Code - Open to Closed

----- Original Message -----
From: "Ryan S. Dancey" <ryand at>

> Someone could attempt to secure a patent on the code after it was
> using the GPL.  Assuming a patent was granted, the patent holder could
> stop the distribution of the code by requiring the payment of a
royalty for
> distribution, thus making it impossible to distribute the code and
> to both the GPL's terms and the patent licensing agreement.

Forutnately for us Europeans, that doesn't apply here - software and
algorithms are, IIUC, non-patentable in Europe. IANAL

> This is one of the dangers of basing Linux (or any other large,
> multicontributor project) on the GPL; the threat that something
> deeply in the code could eventually have an external patent applied,
> necessitating a rewrite of the affected portions of the software; and
> possibly "breaking" dependencies.

It's quite good that a lot of Kernel development is european-located

> The GPL is a copyright license, so it isn't going to be much help in
> defending against a hostile patent suit.

I'm being a bit OTT, but I feel the need to point out

USA != World

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