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Re: Patents again

From: telford
Subject: Re: Patents again
Date: Sat, 09 Oct 2004 22:31:58 -0000

In gnu.misc.discuss David Kastrup <> wrote:
> Abdullah Ramazanoglu <> writes:

>> 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.

Sounds correct to me.

>> 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.

If the party who received the code can prove that it was put there
by the patent holder AND that the patent holder then kept quiet until
the code was widely in use (i.e. they knowingly allowed people to
infringe their patent, and actively encouraged such infringement, for
considerable length of time, then later tried to grab the cash in
retrospect) then the party who received the code may have some claim
on the basis of fair trading. At least in Australia, that sort of thing
would get the Department of Fair Trading involved and it MIGHT work
against the patent holder. All businesses must honestly represent
their actions whilst trading.

>> 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.


   Under the Act, amongst other things, it is unlawful to:

     * make false claims about a product or service

     * operate in a misleading or deceptive way, or in a way that is
       likely to mislead or deceive your customers. You are required to
       tell the truth to your customers and not hide any relevant
       information. This also includes advertising your business.

     * take unfair advantage of vulnerable customers, which is also known
       as unconscionable conduct. This may occur where customers have no
       alternative than to do business with you (for example, you may be
       the only shop in a country town) or where you have a product or
       service that is in high demand, and you abuse your bargaining
       power. A common example of this is where customers are pressured
       to sign a contract that they can't understand and which includes
       unfair conditions.

Applying these rules requires a value judgement, very difficult to
estimate how it would work in a patent case. Also, these laws change from
place to place (they are state laws). The case in question may well
involve parties from several nations making it difficult to apply
state laws to the problem.

> 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.

Yes, this is true for the Copyright part of the equation,
there are other laws besides Copyright.

        - Tel

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