From phm@a2e.de  Thu Dec 14 13:54:45 2000
Date: Thu, 14 Dec 2000 14:54:45 +0100 (CET)
From: PILCH Hartmut phm@a2e.de
Subject: [Patents] Prior use

> PILCH Hartmut wrote:
> >..... everybody would be able to use the patented method for
> >free and do whatever he wants with it, because I, using my prior
> >use right, have transferred this right to him.  
> 
> In the UK (at least), you would not be able to transfer such a right to
> other people in this way.  Section 64(1) of the Patents Act specifically
> states that .... "this right (ie the right to continue use begun before
> priority date) does not extend to granting a licence to another person
> to do the act."

Which would mean that I can no longer sell the software that I had been
selling before the patentee filed his "invention"?  

If so, you have just helped me debunk another of the common confusing
tactics of patent lawyers used to sooth fearful software companies.  For
those companies who distribute their software, "prior use" is of no help
at all.

This is because software works are always "product" and "process" at the
same time.  Which again distinguishes them from the conventional physical
world, where you usually sell a self-contained product and don't need to
transfer a patent license to the buyer.

Software patents make it necessary to sell a patent license to every user
of a program.  Every citizen becomes a potential infringer, whereas with
conventional patents the idea had been to restrict freedom only in the
already highly regulated area of industrial production.

-phm










