[Patents] Re: [Patents] Prosecution

[JPS jp@smets.com]

Richard Morrey wrote:
> 
> The answer I , and I suppose many developers want to know is, if I
> distribute code which infringes a european patent (in my case
> LZW compression), under what current danger am I in of being
> successfully prosecuted.
> 
> The impression I get is that no one knows until:
> 
> (a) A case actually comes to court
> 
> (b) The issue is (hopefully) clarified by the European Union next
> year.
> 
> However as I understand it, at present the likelyhood is that patents
> apply to industrial applications only, as the law overrides the contents
> of any valid patent. But this has never been tested in court.
> 
> Can anyone say if this summary is right, and if not how it is wrong?
> 
> _______________________________________________
> Patents maillist  -  Patents@liberte.aful.org
> http://liberte.aful.org/mailman/listinfo/patents


Usually, it is easy to get software patents in Europe by claiming a
patent on a machine which does something with some kind of new
programming technique.

If you put LZW code on the Web, you are currently likely to be doing a
"contributory infringement" in Europe.

Explanation:
        - You are providing something (ie. source code)
        - Which allows someone to implement a patented technique (ie. LZW
technique for image compression)
        - With industrial application (ie. it displays something)

If you are sued, the judge will have to decide if you are doing or not a
"contributory infringement"
        a- The judge looks at the patent and checks that using your source 
code
is an infringement of the patent, which means you are doing a
contributory infringement by helping people to use your source code
(rather than just read it) and implement a patented image compression
technique
        b- The judge decides that the patent was wrongly granted because it 
was
granted on something which only novelty is in the source code (in the
programme) and that therefore, because programmes can not be patented,
the patent is null

Nobody knows how the judge would decide nowadays. This is called
juridical uncertainty (from the patent owner point of view). That's why
patent owners want to remove the programme exception in the European
Patent Law so that they can be certain that they will be able to use
their current, and future, patents against people who publish software
per se.

Regarding current trends, we should all thank IBM a lot for doing a very
efficient lobbying to promote more patents in Europe
        - IBM could make pass a decision at the EPO which now states that "a
programme which does something is not a programme as such"
        - IBM is strongly in favour of patents and is participating most IP
conferences in Europe to promote more patents in Europe

The likely outcome of EU patent directive and European patent law is
that there will be patents on programmes, simply because the only people
who do not want patents are
        - the open source community
        - some independent software publishers

All others (IP experts, lawyers, big corporations, patent offices, many
researchers, etc.) are in favour of software patents.

It does not matter from a decision taking point of view wheter software
patents are useful or not to the society if 90% of the society which
takes time to express is in favour of software patents.

JPS.