[License-discuss] Software, licenses, and patents

[Ben Tilly]

I think I can unconfuse you. :-)

The developer knows of an applicable patent, but believes the
following set of statements to be true.

1. The new software does not infringe.

2. The patent holder might believe otherwise.

3. Said patent may have been granted on the basis of work the
developer did many years ago.

4. The algorithms used have at least 3 decades of prior art behind
them.  Just not decades of prior art in software.

My further impression is that there is considerable history between
the developer and the patent holder.  Likely there is some bad blood.
The developer is unhappy that the patent exists, and thinks it
shouldn't.

If my impression is correct, the developer is an interested party in
an ongoing conflict.  Therefore the developer's opinion on
infringement is biased and is therefore not to be trusted.  I
therefore suggest that the developer should discuss the situation with
a neutral lawyer, and follow that lawyer's advice.

(None of us like being accused of incorrectly evaluating the
situation.  But having recently been through a divorce, I'm painfully
aware of how my judgement of certain situations was different during
the conflict than it is now...)

On Thu, Mar 12, 2015 at 2:48 PM, Lawrence Rosen <lrosen at rosenlaw.com> wrote:
> Jonathon,
>
> This double-negative in your email leaves me confused: "This isn't a case of where the developer is unaware of possible patents."
>
> In many situations, such as in Apache and W3C, a contributor has an obligation to the community to disclose what he or she knows. Secrets serve nobody. Disclose what you know. No negatives.
>
> AS-IS and NO WARRANTY with respect to patents would then be appropriate.
>
> /Larry
>
>
> -----Original Message-----
> From: jonathon [mailto:jonathon.blake at gmail.com]
> Sent: Thursday, March 12, 2015 1:53 PM
> To: license-discuss at opensource.org
> Subject: [License-discuss] Software, licenses, and patents
>
> All:
>
> Need some help.
>
> Software was privately created.
> Developer wants to release under the GNU GPL 3.0.
> If you want to change the license, for your comments, do so.
>
> Issue:
> Developer is using systems, methods, and techniques that were described in the literature more than three decades ago (in some instances 400 years ago), except instead of using pen and paper, they are using software.
>
> As best as can be determined, there are no patent issues with any libraries that are used.
>
> As best as can be determined, there are no copyright/license issues with any of the libraries that are used.
>
> Developer is not going to be responsible for claims of patent infringement by users.
>
> Developer is not going to cover any court costs incurred by users, because of patent related litigation, or threats of such litigation.
>
> Developer is emphatically not going to pay for the right to utilize any patents within the software.
>
> Content created by the developer years before the patents were applied for, might have been the source of any patents that were granted.
>
>
> Question:
> Should developer make any notation about possible patents that the software _might_ infringe upon?
>
> This isn't a case of where the developer is unaware of possible patents.
> Nor is it a case of where the developer holds any patents.
>
>
> jonathon
>
>
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