From steve.probert@patent.gov.uk  Tue Dec 19 09:21:51 2000
Date: Tue, 19 Dec 2000 09:21:51 +0000
From: Steve Probert steve.probert@patent.gov.uk
Subject: [Patents] monopoly/publicity contradiction?

Erik Josefsson wrote:
> Would it be legal to download swpat source and run it?
> (if it works, that is;-)

In some circumstances, yes.  For example, if it is done privately and
for purposes which are not commercial.

> > > To publish the source would perhaps make (logical) sense in the 
> > > monopoly/publicity exchange (i.e. the patent system)? 
 
> > Absolutely right. 

> If this is right I think we have reached a contradiction.
> Unless you deny that a computer program is a process and
> a product, the patent system publicity principle makes
> the product itself available to the public.
> (Sounds like GPL to me ;-)

I don't see the problem.  The patent is not granted for the computer
program as such.  The patent is granted in respect of a technical
invention.  As with any patent, the specification must clearly disclose
a means of performing the invention.  The development of engineering in
recent years has meant that in many cases the most effective (in terms
of efficiency, economy etc) means of implementing an invention involves
the use of a computer program.  It would be ludicrous to reject a patent
application when the applicant discloses the best means of carrying out
the invention, but to grant it if the applicant only describes one or
more complex and expensive embodiments using, for example, discrete
logic.  A patent is supposed to protect the fundamental invention, not
merely the particular embodiment(s) described in the specification.

> > But unless the disclosure is sufficient to enable
> > a reasonably competent programmer to perform the
> > invention, it won't get granted.

> If "perform the invention" means to put the invention into
> executable code we even have a patent granting critera
> that will give the public access to every swpat product.
> (perhaps the EPO should work on a licence;-)

I'm not sure that I understand your point here.  The whole purpose of
the patent system is to give the public access to every invention for
which a patent is granted.  However, giving the public access to the
knowledge does not include the right to commercially exploit another
person's intellectual property.


-- 

Steve Probert
Deputy Director
The Patent Office




