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The exfiltrated exFAT driver

The exfiltrated exFAT driver

Posted Jul 26, 2013 18:48 UTC (Fri) by giraffedata (subscriber, #1954)
In reply to: The exfiltrated exFAT driver by zuki
Parent article: The exfiltrated exFAT driver

And as for copyright, which was the main subject of this article, preparing or copying the C code can't possibly violate anyone's copyright in the A code.

As for patents, the use of the C code violates the same patents as use of the A code.


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The exfiltrated exFAT driver

Posted Jul 30, 2013 15:41 UTC (Tue) by Seegras (guest, #20463) [Link]

> As for patents, the use of the C code violates the same patents as use of
> the A code.

And any patent which could be violated by code, violates the patent law itself, because mathematics is not patentable.

The exfiltrated exFAT driver

Posted Jul 31, 2013 15:45 UTC (Wed) by giraffedata (subscriber, #1954) [Link]

I don't think it's meaningful to say a patent violates patent law, but I think you're saying a patent that could be practiced by code isn't valid. And you must also mean shouldn't be valid, because there is ample evidence that in the world in which we live, a device that behaves a certain way because of its programming can infringe a patent because of that behavior. We see people forced by courts to pay royalties for making and selling such devices all the time.

And that gives rise to my point that if a device that uses Code A infringes a patent because of what Code A makes it do, then a device that uses Code C to do the same thing does too.

The exfiltrated exFAT driver

Posted Aug 2, 2013 16:57 UTC (Fri) by Wol (guest, #4433) [Link]

You're missing the parent's point.

Any patent granted on actions THAT ARE PERFORMED BY SOFTWARE is an invalid patent. Because software is maths, maths is unpatentable, and any patent that says "you can't run that software" is an unlawful patent.

Patents get granted all the time. The USPTO doesn't bother reviewing them for validity. Damages get awarded for invalid patents. If you want a classic case of some poor defendant getting screwed for millions over invalid patents, look at the Blackberry case! (Though if you actually read what happened, rather than get taken in by the propaganda, RIM screwed themselves.)

You are correct to say that if a device using Code A infringes a patent, then another device using Code C to do the same thing will also infringe. But that is a clear statement that the patent protects an idea, which is NOT ALLOWED by patent law! In other words, any such patent *must* *be* illegal! Patent law is only permitted to protect "reductions to practice". So any patent that covers Code A can't also cover Code C because it is a different reduction to practice!

Cheers,
Wol

The exfiltrated exFAT driver

Posted Aug 2, 2013 17:41 UTC (Fri) by giraffedata (subscriber, #1954) [Link]

Damages get awarded for invalid patents.

This statement pretty much sums up how you and probably the author of the comment to which I responded are talking about something different than I am - and different from what many other readers would understand.

You're apparently talking about some kind of spiritual quality of a patent you call "invalid." I'm talking about what people care about more in discussing patent law: under what conditions can you expect to be forced to pay someone something? That's why most people say that whatever the courts decide is by definition the law, but apparently in your terminology, a court can get the law wrong.

You are correct to say that if a device using Code A infringes a patent, then another device using Code C to do the same thing will also infringe. But that is a clear statement that the patent protects an idea, ...

I wouldn't say it's clear. Patent claims come in all levels of abstractness, and the border between claims that describe a reduction to practice and those that merely state an idea is wide and fuzzy. That's why there are trials. Long ones.

Based on a scant exposure to patent law, it seems to me patents are being enforced on ideas, algorithms, and obvious inventions all the time, but if you ask me what patents are valid, I'm going to talk about the ones that can be enforced, not my impressions.

a court can get the law wrong.

Posted Aug 6, 2013 17:07 UTC (Tue) by Wol (guest, #4433) [Link]

Only too easily, unfortunately.

Or are you saying the legislature is irrelevant, and the law is only what the courts say it is?

The US copyright code says you cannot patent ideas.

The US Supreme Court says you cannot patent ideas.

The Patent Office grants patents on ideas as a matter of course.

Who is right? And given the US tendency to sue at the drop of a hat, and as we have seen the tendency of the courts of first instance to just assume that patents are valid, then you're on to a crap shoot.

So, to take your "the ones that can be enforced", well, it depends, as a defendant, to what extent you are willing and able to defend it. Chances are, the lower court will stiff you. Chances are, if you're still in business, the Supreme Court will declare it invalid. So is that a patent that fits your description, or not?

Cheers,
Wol

a court can get the law wrong.

Posted Aug 6, 2013 17:53 UTC (Tue) by giraffedata (subscriber, #1954) [Link]

are you saying the legislature is irrelevant, and the law is only what the courts say it is?

The law is determined by all three branches of government working together, but where what you think the courts say the law is is different from what you think the legislature says the law is, yes, the latter is irrelevant for most purposes. The former is what is going to keep you out of jail and wealthy.

But remember this is just a matter of definition. You can define the law as something independent of court rulings, and I'm just saying you can't have a very useful conversation using that definition.

Chances are, the lower court will stiff you. Chances are, if you're still in business, the Supreme Court will declare it invalid.
I haven't heard that claim before - that the Supreme Court usually declares patents invalid after lower courts enforce them. As far as I know, the lower courts do their best to avoid being overruled and usually succeed.

I also don't think the Supreme Court has said that all patents on inventions that could be implemented in software are invalid. (Or that they are patents on ideas, algorithms, or mathematics).

So is that a patent that fits your description, or not?

If the patent would be invalidated by the Supreme Court and the only reason people have to pay royalties on it is because they can't afford to get the Supreme Court to consider it, I would call it an invalid patent.

The exfiltrated exFAT driver

Posted Aug 1, 2013 14:49 UTC (Thu) by Jonno (subscriber, #49613) [Link]

While no jurisdiction but US allows patents on software (or mathematics) per see, in most jurisdictions the process of a special-purpose machine can be patented, even if (part) of that process is implemented in software, just as the process of a special-purpose machine can be patented even if (part) of the process is implemented using bolts-and-nuts (which isn't patentable either).

The problem is that some patent lawyers argue that whenever you put a piece of software into a general-purpose computer, you are effectively manufacturing a special-purpose machine, which can infringe on the patent. This interpretation is generally favoured by the European Patent Office, which are therefore happy to grant a patent on using a general-purpose computer to do "one click shopping". However, as of this moment, no court outside of Germany will buy that argument, making those patents unenforceable.

Unfortunately European courts can not actually strike down an already granted patent (only a patent re-examination by the European Patent Office can do that), but have to look at each case individually to determine whether the subject of the lawsuit is violating the patent in question. The answer to that question is generally going to be "No", but each and every user will still need their own lawyer and court date to get to that point...

The exfiltrated exFAT driver

Posted Aug 2, 2013 2:49 UTC (Fri) by mathstuf (subscriber, #69389) [Link]

> While no jurisdiction but US allows patents on software (or mathematics) per see

The US explicitly forbids patents on mathematics.

Check Groklaw.net, what we want and what USPTO/Courts does are not the same

Posted Aug 3, 2013 11:41 UTC (Sat) by jjs (guest, #10315) [Link]

While it's certainly true many of us here believe (and can mathematically prove) software is math, and thus not eligible for patents, USPTO routinely grants patents on software, and they are upheld in courts. Until the Supreme Court of the US issues a definitive ruling that software is math, this battle will continue. That also means large companies suing over software patents (MS vs Motorola, Apple vs Samsung, etc). You need to be prepared to defend if you write software, unfortunately. Thankfully there are some large organizations that are beginning to see the light, and some large non-profits that are on the side of programming=math.

Check Groklaw.net, what we want and what USPTO/Courts does are not the same

Posted Aug 4, 2013 7:48 UTC (Sun) by mathstuf (subscriber, #69389) [Link]

Oh, I agree. The missing part here is to convince courts that software is math. I was just pointing out that the "mathematics" part is definitely wrong barring new legislation.


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