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Novell, buyer's remorse, and the patent threatNovell, buyer's remorse, and the patent threatPosted Nov 22, 2006 10:27 UTC (Wed) by jiri.hlusi (guest, #34016)Parent article: Novell, buyer's remorse, and the patent threat
I'm not quite an expert in [any] law matters, but isn't it so that in order to cause patent infingement, author [of a software] must also be making profit on the work created (among other conditions)?
I mean, plain writing a software as an act of creativity can hardly be punnished under any law, correct?
Could the case be then that if a patent war breaks out, companies who today sell compiled versions of OSS + services around it (say RedHat as an example), put even less accent on making money in "box business", and focus even more on services? It might change the software business, but at the same time shoud not kill the software as such.
Well, complicated world in any case. Not trying to hide that...
-- Jiri
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Novell, buyer's remorse, and the patent threat Posted Nov 22, 2006 10:37 UTC (Wed) by rwmj (subscriber, #5474) [Link] I'm not quite an expert in [any] law matters, but isn't it so that in order to cause patent infingement, author [of a software] must also be making profit on the work created (among other conditions)? No. Microsoft was sued over Internet Explorer and lost (and had to pay a considerable sum of money), even though MS had never sold IE. I mean, plain writing a software as an act of creativity can hardly be pu[n]ished under any law, correct? No, plain creativity can be illegal. It's even illegal if I write the software for my own use and never distribute it. This is one reason why software patents are so stupid -- they are essentially a type of "thought crime". Rich.
Novell, buyer's remorse, and the patent threat Posted Nov 23, 2006 1:59 UTC (Thu) by giraffedata (subscriber, #1954) [Link] No, plain creativity can be illegal. It's even illegal if I write the software for my own use and never distribute it. This is one reason why software patents are so stupid -- they are essentially a type of "thought crime". That's really overstating it. The thought doesn't infringe. The creativity doesn't. You can invent something someone else did and not go to jail or owe anyone anything. You just can't use it. And that's obviously required by practicality. There's no way to tell if someone got an idea from a publication by someone else or dreamed it up himself. So if an inventor is going to get paid at all for disclosing his invention, the law has to assume that anyone who uses an invention after it was disclosed got it via the disclosure. (That doesn't seem to explain why it's an infringement if you independently invent something after the patentee invented it but before the patentee disclosed it, though. I don't know what the rationale for that is).
Novell, buyer's remorse, and the patent threat Posted Nov 22, 2006 14:28 UTC (Wed) by wookey (subscriber, #5501) [Link] The details of exactly what constitutes patent infringement varies by country, but yes, simply using software is often an infringement - i.e. end users can be targeted as well as authors. The rules are different between the US and the UK, for example. This is the best spec I could find for what the actual law is in various places: http://www.answers.com/topic/patent-infringement-2#after_ad1 There is also 'contributory infringement' which is where you supply a part of a patented thing in another country, in an attempt to work round the rules. This is supposed to deal with making parts in the US then shipping them somewhere else where the patent doesn't apply for assembly, but has recently been applied to microsoft 'assembling' all its copies of Windows at a plant in Ireland. Essentially no-one is safe, although end-users don't have too much to fear due to having little money, and sueing them being very bad publicity (see music industry) - which is why it is very easy for end users, but very hard for distributors, to install assorted media codecs, despite/due to the innumerable patent infringements in them.
Novell, buyer's remorse, and the patent threat Posted Nov 22, 2006 15:02 UTC (Wed) by lysse (guest, #3190) [Link] > The rules are different between the US and the UK, for example.
Not least because the UK shares with the rest of Europe a position that software patents are invalid and thus unenforceable... at the moment, this is not a worldwide problem, and people like Ciaran O'Riordan and Florian Müller are trying hard to keep it that way.
Novell, buyer's remorse, and the patent threat Posted Nov 22, 2006 16:13 UTC (Wed) by wookey (subscriber, #5501) [Link] People say this categorically too often. It is nothing like that clear-cut.There are plenty of software patents issued in the UK - like the JMRI model railway control patent, a classic from ARM Corp about changing pointers instead of copying data to speed up emulation (nobody ever did that before 2003 right?), microsoft clipboard format, etc. There are also software patents that have been successfully litigated in the UK. The most famous is probably the 'pupil management data trasnmitted over a wireless network' one that the government had to 'buy off' in the end to let people implement wireless networks in UK schools. The recent Aerotel patent that was considered in the court of appeal was granted. It was granted because the judge thought it was a hardware patent because he was told so - but if you read it, you will see they added nothing but a bit of software to an existing telphone exchange in order to do billing in a particular way. Smells like a software patent to me, not a 'new network' as the judge described it. The situation in the UK (and Europe generally) is better than the US because business method patents really are being resisted, but software patents are being granted and enforced right now. We are trying to hold the tide back, with some success, but saying 'software patents are unenforceable in Europe' is wrong and complacent. The EPLA plan is gaining momentum and _sounds_ reasonable to the inexpert, so will be hard to resist. It is equivalent to creating the US central Patent Court that made 'everything' patentable there in practice. I see no reason why things shoudln't go exactly the same way here over the next 10 years unless a _lot_ of people complain.
Novell, buyer's remorse, and the patent threat Posted Nov 22, 2006 19:25 UTC (Wed) by lysse (guest, #3190) [Link] > There are plenty of software patents issued in the UK
I am aware of this, and there are even more issued by the EU patents office - which is why I talked in terms of validity, not of issue. Nobody is claiming that invalid patents are never issued; they shouldn't be, sure, but the patent issuers are only human. An invalid patent can't be relied upon in court, though, and that's what matters - the ability to say "try it" to someone waving a software patent in the sure knowledge that it would get kicked out of court.
> There are also software patents that have been successfully litigated in the UK. The most famous is probably the 'pupil management data trasnmitted over a wireless network' one...
...that the account you link to describes as having *failed* in litigation; the DfES substantially won in 2004, and pretty much let Bromcom's new owners settle with them after the patent directive was rejected (destroying any hope of Bromcom actually winning anywhere). Backing up your case with evidence that contradicts it doesn't strengthen it as much as you'd hope, you know...
> The recent Aerotel patent that was considered in the court of appeal was granted. It was granted because the judge thought it was a hardware patent because he was told so...
...and therefore he *explicitly rejected* the idea that patents would be extended to software. That, again, sounds like a reaffirmation of the existing situation to me; presumably if somewhere presented a software-only solution, the same judge would have found that either the patent was invalid after all or a software-only solution couldn't infringe the patent by definition (because it's a hardware patent).
> software patents are being granted and enforced right now
Being granted, maybe. Can you point to *anything* in UK law that's an unequivocal "enforcement" of a patent that both sides acknowledge to be software-only? ...Somehow I doubt it. After all, if you could, such a case would serve as a precedent for the general enforceability of software patents (which the Aerotel case explicitly contradicts), and would surely have been such a landmark case in patent law that the Aerotel judgement would necessarily have referred to it.
I'm not saying that it's OK to be complacent, and I respect your efforts to hold back the tide; and nor would I disagree about the dangers of the EPLA - but I do disagree that the situation is as equivocal as you're painting it, and I do so because on the evidence that *you* present, UK courts are holding fast in their refusal to extend patentability to software. The case against software patents needs to be made to the politicians, not the judges. Moreover, perhaps I'm not the person on whose back you should be jumping up and down - the soldier who shoots his allies first soon ends up fighting alone.
Using patents Posted Nov 22, 2006 23:23 UTC (Wed) by man_ls (subscriber, #15091) [Link] The US situation really sucks -- I was under the impression that "use" of a patent was not infringement, and therefore end users were safe; I was writing a rant to complain about the parent comment, but the US code seems to say otherwise.Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent.I hope it is different in the EU.
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