Patent exhaustion and open source
Patent exhaustion and open source
Posted Feb 20, 2019 3:43 UTC (Wed) by bkuhn (subscriber, #58642)In reply to: Patent exhaustion and open source by KaiRo
Parent article: Patent exhaustion and open source
I note the wink, but others might not realize that OIN membership doesn't do much for FLOSS generally as the Linux system definition is quite narrow and OIN is (not surprisingly) not open to including key FLOSS projects that implement technologies where OIN's members and funders have heavy patenting.
As for Van's talk, definitely listen to the Q&A. Van is a very engaging speaker but a lot of the folks in the room felt that his argument might be sophistry. I really hope Van's arguments in this particular talk are right, but they appear to be pretty radical views among patent attorneys. I suspect his exhaustion theory would need to be adjudicated before we could rely on it heavily in FOSS.
Posted Feb 20, 2019 7:44 UTC (Wed)
by madhatter (subscriber, #4665)
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In fairness, I should note that as soon as Lindberg read the article, he asked for a short note about the Q&A to be added. I declined, so the article as published rather skates over the Q&A, as you note; if I'd added a para about it, I would have said something like this (and I'm grateful to Lindberg for certain elements of this summary):
The Q&A period was short. The only probing legal questions that were asked related to design patents (Lindberg replied that he'd not done the analysis) and to Bowman v. Monsanto. That case was about patented seeds, and whether the creation of new seeds was covered by patent exhaustion; the Bowman court held that the patent right to make a new copy wasn't exhausted by the sale of the seeds. Lindberg argued that the difference was that that the Monsanto licence agreement forbade anyone from replanting seeds, where FOSS licences grant the rights to copy and make.
> a lot of the folks in the room felt that his argument might be sophistry
That may well be true, but I fear I missed the straw poll whereby it was established.
> I suspect his exhaustion theory would need to be adjudicated before we could rely on it heavily in FOSS.
That, I would agree with.
Posted Feb 20, 2019 10:10 UTC (Wed)
by Cyberax (✭ supporter ✭, #52523)
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Posted Feb 21, 2019 13:12 UTC (Thu)
by anselm (subscriber, #2796)
[Link] (1 responses)
Also, modern commercially-interesting cultivars of many food crops and similar plants are often hybrids that do not “breed true”, i.e., they don't reliably propagate the traits that make them commercially interesting to their progeny. This is a consequence of how genetics works.
This means that farmers often prefer buying new hybrid seeds with desirable traits (like, high yield or resistance to pesticides) to keeping back part of their previous harvest for re-sowing, which would lead to a worse outcome. IOW, farmers tend to not want to infringe on patents on the seeds because it wouldn't help them commercially.
Posted Feb 28, 2019 15:07 UTC (Thu)
by Wol (subscriber, #4433)
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Those that have bought the agri-business kool-aid. I remember someone on Groklaw (that dates it) saying that his seed, that his family had kept and re-sown for generations, yielded maybe 20% more than his neighbours buying in high-yield seed. Thing is, the commercial seed does well in the conditions it's bred. It doesn't necessarily do well in different conditions elsewhere, while seed that's been kept and re-sown adapts to the local conditions.
Cheers,
Posted Feb 20, 2019 16:32 UTC (Wed)
by bkuhn (subscriber, #58642)
[Link]
There was a lot of hallway discussion afterward. Also, we discussed it some at the speakers' dinner for the track. There was a very lively debate there. :)
I realize there was none of this available to you; next time someone from LWN is at our Legal & Policy DevRoom, please do let us know. I can't promise the press will be invited to the speakers' dinner, but I would have made the case that you should be invited to the DevRoom co-organizers.
(I co-organize the DevRoom where this talk occurred, along with Tom Marble, Karen Sandler and Richard Fontana.)
Patent exhaustion and open source
Patent exhaustion and open source
Seeds (and animal breeds) have special protection in the patent law. It recognizes that self-replicating entities need to be treated differently from regular dumb objects.
Patent exhaustion and open source
Patent exhaustion and open source
Wol
Patent exhaustion and open source