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

[Jean-Paul Smets jp@smets.com]

Jean-Jacques de Jong wrote:
> > 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?

Hopefully, law can help us. The contradiction between decompilation law
and patent law means that someone who publishes source code is taking
more risks of being sued for patent infringement than someone who
publishes binary code which may not be decompiled according to
decompilation law in Europe and US. Showing to a competitor the source
code of a programme is the best way to help it find patent infringements
in one's programme.

Patents on computer programmes are therefore an incentive not to publish
the source code of a software. This has been confirmed by medium and
large European software companies.

On the other hand, we know that publishing the source code is good for
consumer protection and safety of information systems. All people who
had a Y2K bugged software without the source code know that. It is
better to have access to the source code of a software if one needs to
fix it whenever the author closed doors.

Article 100A of the Rome Treaty stipulates that any new law created by
the EC should lead to a high level of safety and consumer protection. 

An EC directive which legalises patents on computer programmes, and
nothing else, would harm safety and consumer protection therefore be in
contradiction with the Rome treaty and could be cancelled.

It is therefore required by law for the European Legislator to include
some kind of higher juridical protection for people who publish source
code than for people who only publish binary code. Such protection could
for example be an article stating that "programmes provided with their
source code can not be considered as infringement or contributory
infringement as long as their publisher includes necessary notices and
technical processes which alert the end user of potential patent
infringement and require him/she to make an intentional action before
using the software and comiting a patent infringement"

The only other approach would be to require all sofware in Europe to be
published with their source code but I doubt people will accept this.

JPS.