Re: [Patents] Hardware N Software

[Gregory Aharonian <srctran@world.std.com>]

John writes:
>Nobody is going to enforce a patent on my reading, copying or
>modifying a circuit design.  But they might try to do so (here in
>the US) if I use patented software, even if I don't manufacture
>anything as a result.

No.  If you modify a circuit design (in an infringing way), and use it
in a product, you can/will be sued.  The same for software.  There is
no difference and how the patents are asserted.

Similarly, no one is going to sue you for just reading a hardware or
software patent.  That is the whole point of the patent system, to 
get people to disclose their ideas for others to read.

Similarly, no one is going to sue you for making copies of hardware and
software patents, and distributing them to others, especially when you
can download the full text of the patent for free from the USPTO.  ALso,
their are a dozen or so companies that sell copies of US patents quite
cheaply, about $2 to $3, to whoever wants to pay, and none of them have
been sued.

For the case of making use of a hardware or software patent, no one is
going to sue you if you are not manufacturing and selling.  First, 
there are no profits to capture back, and the courts can sanction 
companies for filing frivolous lawsuits.

So you grossly exaggerate the threat of software patents, and any
differences in how hardware and software patents are asserted.  In
this sense, the open source community is worrying for no reason at
all.  Most of them aren't making money, and aren't doing much that
falls within the active areas of software patenting.  Go to any of
the databases that track patent litigation, and you will see that
the vast majority of software patent lawsuits are between established
companies (big or small) making significant profits.  Few if any open
source companies are included here, and the few that are making money
or getting close to making money, are starting to use traditional
patent and copyrights to protect their property.

Put it this way, nothing Hartmut will ever do the rest of his life
with software will ever be significant enough to attract a patent
lawsuit.  In fact, to date, the only individual to be sued for
software patent infringement on either side of the Atlantic is
myself.  The subject of the lawsuit has nothing to do with any of
my programming activities.  But beyond me, nothing much is happening
about individuals or startups being sued for software patent
infringement, certainly not to any higher levels than for any other
industry.

So these laments about loss of freedom and stfiling of innovation 
posted in this forum are hysteria and exaggerations, and certainly
no excuse to invent artificial distinctions between hardware and
software to then serve as a basis for treating hardware and software
differently under patent laws.  A variety of US courts have rejected
such arguments repeatedly, and eventually the European courts will
converge to that opinion as well.  Though hopefully with better
logic than saying "we don't know what a technical effect/problem is,
but we will assert the term anyway".

Greg Aharonian