Re: odd copyright issue (medical diagnostic program)

On Fri, 31 Mar 2000, Richard A. Schafer <schafer[_at_]mail.utexas.edu> wrote:
>
> Interesting that this question arises today. I've been trying
> to research what I believe is a related issue: a client has a
> computer-driven device which is patented. The device isn't
> functional without using the software. He wants to sell the
> device, but license the software, charging a per-use fee for
> the software.
>
> Does anyone see a problem with doing this? (Sounds like per-use
> fees are becoming interesting to rights holders.) I know there
> are first-sale issues with the patented device, but can he use
> copyright to get his per-use fee?

An awful lot depends on the patent and its claims. While I'm certainly not a patent law expert, it seems to me that you have to disclose how to make the patented device work in order to get the patent and that, if I remember correctly, if don't disclose you can lose the patent.

If your client claims that the software is NOT part of the patent, then the client is vulnerable to someone else's coming up with independent software which would work and could be used.

I don't know that this precise question has ever been litigated (although I'm sure it will be if not), but I think you have to be very careful here as this strategy may cost more than your client thinks.

Harold Federow
<haroldf[_at_]bsquare.com> Received on Mon Apr 03 2000 - 16:11:12 GMT