Subject: Re: IC's patent-pending technology
From: <stephen@xemacs.org>
Date: Thu, 28 Sep 2006 13:52:27 +0900

Rob Cameron writes:

 > On September 27, 2006 03:30 am, stephen@xemacs.org wrote:
 > > 
 > > They still can do that, given the covenant.  They have to avoid
 > > combinations with proprietary and unpublished products, including what
 > > we would call "mere aggregation" (and probably licenses with required-
 > > patent-licensing language in them).
 > 
 > We are only interested in (and only entitled to be interested in) 
 > combinations that actually infringe patent claims.    I think 
 > "mere aggregations" would be excluded by definition.

But combinations don't infringe patent claims (unless the combination
is the patent claim).  So "mere aggregations" are only excluded from
the covenant if the covenant excludes them, and Larry explicitly said
otherwise in <007d01c6d77c$a32a1b00$0202fea9@LROSENTOSHIBA>:

    What is the difference between buying a Dell computer and then
    downloading Linux, as opposed to buying a Dell computer
    preconfigured with Linux? The honest answer is: The second
    alternative offers us an opportunity for a commercial license
    under patent law, without worrying about bit-for-bit analyses or
    derivative work complexities. Dell is making money on that deal;
    in our view, so should the author of the software and the
    inventors of its embodied patents. :-)

    If the economics of that trade-off drive customers to download and
    install their own free software, we don't care. We like people who
    download their own software. If enough people do so, we might be
    encouraged to drop our license fees for commercial products.

As Larry describes and rationalizes it, I'm in sympathy.  It's a
value-added service.  But the term "mere aggregation" is likely to
characterize the intuition of most open source developers for
pre-installed software configured for the platform, especially since
Larry has denied that configuration is modification.

Of course I'd love you to give more scope for FSBs---or any business,
for that matter---to distribute that way.  If that's what you want,
I think you need language in the covenant to say so.

Note that even if the embodying software is copied onto a CD-ROM, but
it's distributed as part of my preinstall package which has a single
price, then even if I label it "Free Gift", I would (as a non-lawyer)
be concerned about this being considered a "combination of hardware
and software" and as such being excluded from the covenant.