Fw: Converting/Splitting Code - Open to Closed

none chloehoffman at hotmail.com
Fri Feb 16 05:36:59 UTC 2001

This is not legal advice, no attorney-client relationship is hereby
established, etc. etc.

Just to clarify the first sentence of the second paragraph... Canada also
has a 1 year grace period but just for disclosures made by the inventor i.e.
if the inventor has published his/her invention, then she/he can file within
1 year from that date (although disclosures by someone other than the
inventor before that inventor's application will bar the
application/patent - retaining absolute novelty to some extent). Also, many
other countries have idiosyncratic grace periods which may (although
extremely unlikely to) come into play e.g. Japan has some 6 month grace
periods for disclosure at certain scientific bodies, government exhibits,
and disclosures against the will of the inventor.

Also, as a nit, my understanding is that the burden is on the USPTO to prove
lack of novelty and obviousness of invention in an application for patent
therefor and the inventor to rebut when that case is made. In the end I
suppose the inventor may have/probably has to prove novelty and
unobviousness. But the the shift in burden is significant.

As for software being unpatentable in the EU, I would not state the
proposition so categorically. Certainly, the EU is stricter on software
patent applications but nevertheless regularly allows and upholds in its
legal institutions software-related patents. I suggest taking a look at the
following link: http://www.epo.co.at/case_law/english/I_A_1-1.htm
(and following pages) for a good review of relevant EPO (European Patent
Office) case law. There is some disparity among the various European
countries themselves although Germany and the UK are pro-software patents
from my understanding with colleagues there. Further, Japan is very
pro-software patents. So the reality is that software patents are in all
major markets in the world (leaving aside the arguments pro and con for
those kinds of patents in the first place).

> ----- Original Message -----
> From: "Ravicher, Daniel B." <DRavicher at brobeck.com>
> To: "'SamBC'" <sambc at nights.force9.co.uk>; "Ryan S. Dancey"
> <ryand at frpg.com>; <license-discuss at opensource.org>
> Sent: Thursday, February 15, 2001 5:27 PM
> Subject: RE: Converting/Splitting Code - Open to Closed
> > 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,
> 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,
> > 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
> to
> > those who aid in the progress of science and the arts.
> >
> > -----Original Message-----
> > From: SamBC [mailto:sambc at nights.force9.co.uk]
> > Sent: Thursday, February 15, 2001 4:34 PM
> > To: Ryan S. Dancey; license-discuss at opensource.org
> > Subject: Re: Converting/Splitting Code - Open to Closed
> >
> >
> > ----- Original Message -----
> > From: "Ryan S. Dancey" <ryand at frpg.com>
> >
> >
> > >
> > > Someone could attempt to secure a patent on the code after it was
> > released
> > > using the GPL.  Assuming a patent was granted, the patent holder could
> > then
> > > stop the distribution of the code by requiring the payment of a
> > royalty for
> > > distribution, thus making it impossible to distribute the code and
> > conform
> > > 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
> > embedded
> > > 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
> > then...
> >
> > > 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
> >
> >
> > =======================================================
> > This email message is for the sole use of the intended recipient(s) and
> may contain confidential and privileged information. Any unauthorized
> review, use, disclosure or distribution is prohibited. If you are not the
> intended recipient, please contact the sender by reply email and destroy
> copies of the original message.
> >
> > To reply to our email administrator directly, send an email to
> postmaster at brobeck.com
> > http://www.brobeck.com
> >

More information about the License-discuss mailing list