Re: [Patents] Hardware N Software

[Stefano Maffulli <stef@zoomata.com>]

On Wednesday 23 January 2002 07:11, Gregory Aharonian wrote:
> 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.

I think that the key in your sentence here is "in an infringing way": it is 
different infringin a software patent, because a software patent is not 
explicitly declared, i.e. those are only described, rather than implemented. 
If I mimic the way a circuit acts (like AMD cloned Intel's x86) but do not 
mimic its implementation I cannot be sued. If I mimic the one-click-buy with 
a different tecnology I can be sued, since the sw patent does not show any 
code at all, only its description. If this is not stiffling innovation I 
don't know what can be.

> 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.

That is what DOESN'T happen in swpat: people describe their ideas, but not 
the implementation. 

> 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.  

already answered, this is false!

> 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

That doesn't demonstrate anything, but that money making companies go often 
to court to defend or attack using their patents (sw or else). Open source 
companies can also be considered newcomers in business, compared to the 
companies you are alluding (IBM, siemes, compaq, ecc) and aside from 
patenting the obvious there is nothing more to patent.

> 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.

Only because if they don't protect themself first they can loose. If 
everyobody can buy guns, you buy the bigger you can afford, right?

> 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.

This cannot reassure me: time can come when I step on someone's foot and if 
that foot is bigger than mine I will be crushed... no, thanks! 

> 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

they are different, live with it. There is a difference between the 
enunciation of an algorithm and it's implementation in a computer language

> 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".

The logic I hope is: patenting ideas is not possible! show me the code and 
copyright it.

Stefano Maffulli

-- 
Stefano Maffulli aka Reed                   | Milano Linux User Group
http://www.zoomata.com a close-up on italy  ;| http://www.milug.org
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