[Patents] the paradox of prior use in software

[PILCH Hartmut phm@a2e.de]

> >Even if "hardware patents" were equally bad in their consequences,
> >politicians would still be free to distinguish.
> 
> Not necessarily true.  I suspect there is some provision in TRIPS
> that would force politicians in any country to treat both equally.
> And I doubt that in their enabling legislation, they could come up
> with some non-arbitrary way to distinguish the two that wouldn't
> force the software rules to automatically be extended to a large
> amount of the hardware patents.

We have already come up with the necessary rules and argued them with you
for many times here before.

And TRIPS is not a hindrance, as has been restated even by B. Mueller from
DG Interior Market at a London hearing on Oct 19, and as has been argued
with you many times before.
 
Here's another issue where informational goods are different from
hardware, even circuitry:  prior use.

You may not have that problem in the US, because there is the
"first-to-invent" principle.

In Europe, I might prove that I have been using a software design 
principle before the patentee and I would then get a limited prior use
right but the patent would stay with the patentee who was first to
register.

What do I do with such a prior use right then?

I could in principle use that right any way I want, "just as with
hardware" you might want to say.

But, since software economics is different, this will mean that I can
throw free software on the market.  Perhaps the patented module will have
to be a Qt Free License type of semi-free software.  But so what:  
anybody could contribute and, as long as the patented part is implemented
under my name, 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.  

This would in effect mean that prior use right can void patent right in
the case of software patents while it can't in the case of hardware
patents. Unless you are willing to dump an unlimited number free-of-charge
circuit boards onto the market.  Which would be suicidal in the case of
hardware but normal in the case of software.

This contradiction itlelf provides enough legal arguments for getting rid
of software patents.  If patent experts still claim that they have legal
reasons to push for software patents, then that is pure bad will on their
part.  And it's an abuse of power.  When the nazis burnt books, at least
they were legitimated by popular vote.  Those patent lawyers who are
pushing their group interest to hand out software burning licenses for
money are legitimated by nothing:  neither a political mandate nor TRIPS
nor any sound legal or economic reasoning.

-phm