[Patents] Re. Prior Use

[PILCH Hartmut phm@a2e.de]

> > > 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 you were selling the software (ie. making it available to the public)
> before the priority date, then the patent would be invalid.

I may have been selling the software to a very limited group of people,
e.g. to the operators of a few high-performance database webservers of
some high-traffic sites.

Or I may have been selling it as a closed-source product without making
the "invention" apparent to anybody.

In both cases my business consisted in selling software licenses.  And I
am interested in being able to continue doing that.  Also, I am interested
in eventually making things opensource, such as happens with many projects
of this type.  I am thinking of companies like TCX and Digital Creations.

This also raises another difficult question:  what is "publication" in the
case of software?  

In classical hardware products you usually don't have the problem.  
Selling a drug isn't equivalent to publishing information.  But selling
software is more or less equivalent, depending on how open the source is.
Again, there is no clear limit between two concepts on whose distinctness
patent law relies.  How does patent law cope with that?
 
> > Software patents make it necessary to sell a patent licence to every user
> > of a program.
> 
> On what basis do you reach this conclusion?  (I'm not arguing - I've
> just never come across this proposition before.)

Swpats are process patents.
Historically that is how they were derived: as equivalents to mechanical
processes running on a computer.

Therefore, by running the process you infringe on a patent.
Any software user has to run the process.
The only way not to infringe is to obtain a patent license, either
directly from the patentee or indirectly from a software vendor.
Thus the software vendor has to make sure each copy he distributes is
bundled with a patent license.  He has to control distribution, make
sure copying is restricted effectively, not use a shareware mode etc,
because otherwise he would be distributing patent licenses which he
doesn't own.  Patent licenses are tied to individual pieces of matter
(including virtual matter, such as shrink-wrap copyright licenses).

With hardware patents you usually don't have this problem.
First, the process involved, if any, is a process of industrial production
that is finished when the product is finished.
Second, even in those rare cases, where the process may be executed by an
end user, you don't have the problem of distribution control which is
peculiar to informational goods.  Thus the end user will not notice any
effect of a patent license being tied on to the product he is using.

-phm