Intel's proposed BSD + Patent License

Laura Majerus LMajerus at
Wed Oct 31 02:42:04 UTC 2001

I'll jump in here, not to defend or explain the patent system (heaven
forfend I even try that on this list!), but to point out that 35 U.S.C.
sect. 273 offers some potential relief in the situation you describe.  It's
intended to provide a defense to people who were commercially using a
patented business method more than a year prior to the patent's filing.
It's a confusing and complicated law and has not seen wide use (yet).

Laura A. Majerus
Fenwick & West LLP
2 Palo Alto Square
Palo Alto, CA 94306
Phone: 650-858-7152
Fax:    650-494-1417

> -----Original Message-----
> From: email at [mailto:email at]
> Sent: Tuesday, October 30, 2001 6:25 PM
> Cc: license-discuss at
> Subject: Re: Intel's proposed BSD + Patent License
> On Tue, 30 October 2001, Russell Nelson wrote:
> > Essentially, we are all of us completely and totally screwed by the
> > patent system.  If I invent something that you have put into your
> > (unpublished -- at least as far as the patent system is concerned)
> > code for decades, and patent it, I 0WN J00.  Doesn't matter 
> if you're
> > IBM and I'm Joe Blow, or vice-versa even.
> given:
> =Patents must be novel (that is, it must be different from all 
> =previous inventions in some important way).
> =
> =Patents must be nonobvious (a surprising and significant 
> development) 
> =to somebody who understands the technical field of the invention.
> I don't see how you could patent something that I've had in
> code for decades. It's neither nonobvious nor novel.
> Granted, software patents can be a pain
> (Some perl/tk widgets had to have functionality
> ripped out because they supported a patented image format)
> and, IMHO, stupid (the "one-click" patent from days gone by)
> but has the scenario you described actually happened?
> (i.e. decades old code getting patented out from under someone)
> Greg
> --
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