Intel's proposed BSD + Patent License

Chloe Hoffman chloehoffman at
Wed Oct 31 18:11:08 UTC 2001

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

>From: email at
>CC: license-discuss at
>Subject: Re: Intel's proposed BSD + Patent License
>Date: 31 Oct 2001 06:22:39 -0800
>On Tue, 30 October 2001, David Johnson wrote:
> >
> > On Tuesday 30 October 2001 06:24 pm, email at wrote:
> > > =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.
> > The current system is based on "whoever filed first". It may not be the
> > "law", but it is the practice.
>But if I code some software, register it with the copyright office,
>put a LGPL license on it, put it on the web, and I DON'T get a
>patent for it,
>then, YOU shouldn't be able to take my code and patent it,
>just because there's no prior patent art, doesn't mean it's novel.

Someone may be able to get a patent but it may be invalid. The relevant 
patent office may not be aware of this code. Further, someone is not 
entitled to a patent for someone else's invention. The applicant must have 
invented the invention not have taken it. This issue is called "derivation" 
in patent law circles. Non-patent prior art is relevant to the examination 
of applications for patents and for invalidating granted patents.

>at work, we get a patent refresher every year or so.
>basically, we are not to tell our customers anything
>about future ASIC products without first passing it by our
>legal department for approval. apparently if we say
>too much, give away too much detail, we can lose
>a right to a possible patent.
>code registered with the copyright office decades ago
>should similarly disqualify patentability.

It may but it depends on what is actually registered. In many cases a 
registration for software includes a redacted version of source code (to 
preserve trade secrets). Accordingly, the invalidating effect may be 

> >Unfortunately, the patent system is no longer being
> >run by logic, common sense, or even the LAW. It's being
> >run by lawyers.  Despite our veneer of civilization,
> >might still makes right, and the lawyers have a monopoly
> >on the application of "might". The law means whatever
> >they say it means.

While I share your concerns about where the "patent system" is headed, I 
would note that the "patent system" is ultimately run by the various 
national governments. They can put an end to the "patent system". Lawyers 
are ultimately just middlemen and dependent on the graces of the national 
governments. Further, lawyers typically act on behalf of clients. While 
lawyers certainly have a vested interest, they are dependent on benefactors 
(otherwise they are doing something else). So, I would suggest that the 
responsibilities of the government and interests of the patent system 
end-users not be lost. Just my biased two cents ;-)

>OK, time for a beer.	;)
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