[License-discuss] Software, licenses, and patents

[Ben Tilly]

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
>>>
>>>
>>> _______________________________________________
>>> License-discuss mailing list
>>> License-discuss at opensource.org
>>> http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
>> _______________________________________________
>> License-discuss mailing list
>> License-discuss at opensource.org
>> http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
> _______________________________________________
> License-discuss mailing list
> License-discuss at opensource.org
> http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss