Subject: Re: termless copyright and patents
From: <stephen@xemacs.org>
Date: Tue, 10 Oct 2006 00:47:20 +0900

I really don't understand what you're getting at.  In terms of your
example, which I am going to assume for convenience is a *complete*
enumeration of the claims:

 > To illustrate, here is one list of claims, one
 > independent and two dependent:
 > 
 >      1. a frob
 > 
 >      2. a frob, as in (1), which is red and has three legs
 > 
 >      3. a frob, as in (1), which is blue and has four legs
 > 
 > One subset of the scope which can not be constructed
 > by picking and choosing from the enumerated claims
 > is:
 > 
 >       implied-1a.   a frob as in (1) which is blue and has three legs

[Caveat: I don't think 2 or 3 can be considered proper claims, as
claims are teleological, they have to be useful.  What's useful about
a frob that's red, not clear?  Or a frob with three legs as opposed to
one with two?  For example, suppose that "frob" == "fishing fly made
from gold wire" and claim (2) actually is an emulation of a
three-legged redbug, while (3) is an emulation of a four-legged blue
crawler.  If there are no known fish prey that are blue with three
legs, then (implied-1a) might actually be considered sufficiently
unobvious that it deserves a separate patent!  I don't know, so it's
hard to evaluate things or come up with clear examples or reasoning.]

If I release a program which embodies (1) and (implied-1a), then I
would expect that you are restricted to (implied-1a), plus such
practice of (1) as does not infringe (2), (3), or other patents.  In
view of the apparent importance of colored frobs with legs, I suppose
this is quite restrictive.

Alternatively, I can imagine that the interpretation would be that
those claims are equivalent to

    1. a frob,
    2. a frob, as in (1), which is colored red or blue
    3. a frob, as in (1), which is stabilized by three or four legs

in which case I suppose that the GPLv3d2 covenant would cover all
three claims, so that you are restricted only to avoid claims in other
patents that are dependent on use of a frob.

However, if I release a program which embodies a three-legged *purple*
frob, I'm not sure what you get from your enumeration (unless it is
equivalent to mine), and in my case you can't practice red or blue frobs.