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Re: Patents again

From: Abdullah Ramazanoglu
Subject: Re: Patents again
Date: Sun, 10 Oct 2004 01:15:13 +0300
User-agent: Pan/ (As She Crawled Across the Table)

begin  David Kastrup <> dedi ki:
> Abdullah Ramazanoglu <> writes:
>> begin  <> dedi ki:
>>> In gnu.misc.discuss Abdullah Ramazanoglu <> wrote:
>>>> begin  Kari Laine <> dedi ki:
>>>> A particularly interesting question for me among others is, what is the
>>>> status of a patented code introduced into a GPL program by the patent
>>>> owners themselves? Do they automatically give up their relevant patent
>>>> litigation rights against *all* GPL software base?
>>> They don't automatically give up their patent rights but if they want
>>> to be able to legally distribute a GPL program with their code introduced
>>> into it then they must provide a GPL-compatible license for the patent.
>>> If they decide to distribute such code without a patent license then
>>> such distribution is illegal and may count against them if they want
>>> to hunt down users of their code.
>> Giving it a second thought it seems that by merely accepting GPL terms
>> they automatically give up their patent rights against GPL codebase,
>> though IANAL.
> That is like saying by calling a plumber you automatically pay him.
> This isn't so: you still have to do the payment yourself, and the
> plumber can't just pilfer the amount from a wallet lying around.

Would it solve the problem if a new clause in a future "GPL v.3"
explicitly stated that any patented code is unenforceable against any GPL
project? A patent holder accepting such a GPL v.3, would *explicitly* have
granted a non-restrictive patent license for all the GPL codebase, I think.

>> But it doesn't end here. What if they indirectly and from multiple
>> untraceable sources sneak patented code into GPL codebase? It should
>> be easy to do, at least I can readily think of a couple of ways.
> It does not matter how the code got there.  The patent holders have a
> right to payment if their code gets used without a licence, regardless
> of whether they put it there themselves or not.  You can sue them to
> stop distributing code under the GPL without a non-restrictive patent
> licence.  But you have to sue them: there is no automatism involved.
> In particular, the party receiving the code has no base to sue for a
> patent licence, only the party that has the copyright on the original
> GPLed code can sue for compliance.

However, if the patented code got there indirectly, then patent holders
would be on pure legal ground, and you wouldn't even be able to sue them.

As for the case where it got there directly, I'm surely not a lawyer,
because I simply cannot understand how a GPL-bound patent owner could
enforce their patent on any GPL program. By distributing their patented
code under GPL, they're explicitly stating that anyone can use it, modify
it, and redistribute it under the same conditions, freely in both senses.
They're *explicitly* giving the permission and freedom for their patented
code. How then, can they ever go to court and claim that I cannot use
their code without paying to them for their patent? It's beyond me.

>> Probably, if they introduced the code themselves. Doubtful if they
>> used indirect means.
> It does not matter at all who introduced the stuff.  It is not illegal
> to inject patented code into GPL stuff.  It is only illegal to
> distribute the stuff without granting a non-restrictive patent
> licence.  And the only one that can grant such a licence is the patent
> holder, regardless of who put the code in.

Abdullah        | aramazan@ |
Ramazanoglu     | myrealbox |
________________| D.0.T cöm |__

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