[Patents] Re: [Patents] Facts vs. Intention

[Jean-Jacques de Jong jean-jacques_de-jong@hp.com]

jp@smets.com wrote:
> 
> In recent discussions (including the proposed difference between source
> and binary), I found one legal argument missing : the importance of
> intention.
> 
> I think that, if programmes were patentable, an infringement case could
> be made by saying something like "although the source code is available,
> it was clearly not the intention of the publisher to publish it for
> educational purpose but rather to make it available and usable by many
> users. The intention of the author was therefore to publish a programme
> product, as source code, based on patented techniques and this is an
> infringement".
> 
> This means that, from a law point of view, there is a way to make a
> difference between
>         1- source code intented for educationale purpose (to spread the
> knowledge of a patented technology)
>         2- source code intented for immediate use
> 
> All source code distributions would probably fail under case 2-, since
> they are intented to be used rather just read.
> 
> Regards,
> 
> JPS.

I agree with you, although, again, this needs to be confirmed by case
law. 
To go deeper into your reasoning, I would add:

Source code is presently distributed in packages with all the
information and build scripts needed to produce the binaries in a very
simple manner. This manner of distribution could indeed be dangerous,
because it might fall within the contributory infringement provisions of
the laws (providing all the necessary material to implement an
infringing program).

Bare source code, without the build scripts, is in fact what all the
previous discussions were about. Such material is indeed purely
informational and would not IMHO fall under patents.

But then, in what category do we put interpreted source code which is
always directly usable?

To be on the safe side in the US, to avoid their "infringement
inducement" provisions, it would be useful to add a notice accompanying
the bare source code, stating which patents would be infringed if it
were used to produce executable code and warning the users that they
should negotiate a license with the patent owners. (Is this not one of
your findings, JPS?)

This mode of source code distribution can be useful for the open source
community, because most patent laws allow the experimental use of a
patented invention. Moreover, in many countries (especially European
countries - but not the US), you are even allowed to use a patented
invention for personal and non-commercial use.

However, the source code distribution becomes less attractive without
the build scripts...

So I agree with Bernard Lang that it would be better for the open source
community to extend the non-applicability of patents to the distribution
of binary code. But I am pessimistic on the issue of that battle. After
all, is it not legitimate that patent owners can enforce their patents
against resellers of infringing software?

JJJ