Intel's proposed BSD + Patent License

Chloe Hoffman chloehoffman at
Wed Oct 31 17:47:27 UTC 2001

This is not legal advice. No lawyer-client relationship is established. 
Speaking only for myself. etc etc.

>From: email at
>CC: license-discuss at
>Subject: Re: Intel's proposed BSD + Patent License
>Date: 30 Oct 2001 18:24:32 -0800
>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 (unpublished -- at least as far as the patent system is concerned)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.
>=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.

If the invention embodied within the code has never become publicly known or 
used or has otherwise been kept secret, then it is possible. The patent 
system is all about encouraging disclosure.

>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)

Not sure about the circumstance regarding the "decades old code". If the 
invention was properly made known or used in the public then a granted 
patent for that invention may be invalid. You have to remember that the 
patent system is not all knowing - it may not know of this "decades old 
code" unless it has been cited to the relevant patent office. If the 
invention was kept secret, then a patent for the invention may be valid. 
However a user of the invention before the grant of the patent may be able 
to continue to use the invention under prior use rights. Patent systems are 
different around the world so no general statement can be made. Further, 
each situation is very fact specific.

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