Re: what does a patent restrict?

On Mon, 4 Oct 1999, Lynn Winebarger <owinebar[_at_]free-expression.org> wrote:
>
> On Sat, 2 Oct 1999, Jeroen Hellingman <jehe[_at_]kabelfoon.nl> wrote:
> >
> > BTW, what would be the effect if they add a clause to the GPL that you
> > give a free licence of all your software patents to all GPL software
> > developers and users in return for your licence to use GPL software.
>
> I have no idea -- but it's not the developers who need a patent
> license, it's the users. The developers only write a description of
> the patented device, it's only actually running the resulting program
> that creates an infringing device.

The truth is far more interesting. With respect to a patent, this depends largely upon the claims of the patent. Further, I have never met a developer (outside of Redmond) who didn't, at least once, run his code to see if it works (although in the back of my memory, I seem to recall there may be an experimental use exception for process claims).

You directly infringe a patent by making, using, offering for sale or selling (collectively, "practicing") THE CLAIMED INVENTION. If the claims are directed to the combination of a machine with claimed software, the invention is only practiced by persons who run the claimed code on a machine. If the claims are directed to the article of manufacture bearing the software (a disk, for example), the invention is practiced by those who make, use, sell or offer for sale the disk. If the claims are directed to a propagated signal, then the invention is practiced (and infringed) by those who make or use the signal. If the claims are directed to a process, then those who use the process are the infringers.

On the other hand, if you don't catch the developer with one of your apparatus, article of manufacture or propagated signal claims for direct infringement, there is always indirect infringement. For example, contributory infringement, which occurs when an inventor provides all or substantially all of the elements of the invention, and that which is provided has no noninfringing use, and a third party actually infringes. (this is not strictly speaking correct, but close enough; See 35 USC s. 271 and case law for details). Finally, even if you didn't directly infringe or contribute to infringement, you can still be nailed for inducement to infringe in many cases, where the plaintiff merely needs to shown to have actively and knowingly aided and abetted another who infringed.

Andrew C. Greenberg
<werdna[_at_]gate.net> Received on Wed Oct 06 1999 - 12:04:40 GMT