[License-discuss] Software, licenses, and patents

Fri Mar 13 14:49:17 UTC 2015

Please stop sending e mail to this address, Daunevin is no longer  
with us. Thank you.
On 12-Mar-15, at 7:11 PM, Ben Tilly wrote:

> If the facts are what I guessed, then the Alice v. CLS Bank decision
> last year would make that point.  But the United States Court of
> Appeals for the Federal Circuit has a history of creatively
> interpreting Supreme Court decisions to expand what is patentable.  So
> it is not certain that the pendulum will not swing back before anyone
> tests this particular patent.
>
> Furthermore we don't have all of the facts.  It may be that the patent
> describes a creative way to apply known mathematical techniques in a
> clever way to a problem that had long been poorly solved in a very
> different way.  In that case, a court could decide that the fact that
> the mathematical techniques happened to have been known by people in
> another field is not a bar to patentability in this one.  (See
> http://en.wikipedia.org/wiki/Inventive_step_and_non- 
> obviousness#Graham_factors
> for the relevant test.)
>
> On Thu, Mar 12, 2015 at 4:59 PM, ChanMaxthon <xcvista at me.com> wrote:
>> Just wondering, since decades if not centuries ago a prior art  
>> already stood there, why would the patent still be relevant in the  
>> first place? If the hostile IP cockroach is biting you can show  
>> the court those prior art, either proving that their patents have  
>> nothing to do with your code, or just shoot their patents down  
>> completely.
>>
>> No lawyer, just trying to give my two cents.
>>
>> Sent from my iPhone
>>
>>> On Mar 13, 2015, at 06:49, Ben Tilly <btilly at gmail.com> wrote:
>>>
>>> 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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