Subject: RE: A Primer on Infringing Patents in Software
From: "Lawrence Rosen" <lrosen@rosenlaw.com>
Date: Mon, 9 Oct 2006 08:51:22 -0700

> 1.  How do I know if a claim is infringed by my software?

That's the difficult part. You test each claim against your software. There
is no easier way. That's the main point of our article. 

> 2.  How do claims interact with each other?

They don't. And to answer your question from another of your emails, there
are no "implied" claims. There are either explicit claims that read on your
software, or there aren't.

> 3.  What are the penalties for inadvertant infringement?

For direct infringement, intent has nothing to do with it. Accidentally or
intentional, you still infringe. Contributory and inducing infringement, and
of course willful infringement, have elements of intent.

> 4.  What does a typical patent license look like?  In particular, can
>     I develop new versions of my software without having to get a new
>     license from the patentholder?  What kind of payment arrangements
>     can I expect?

There is no "typical" license. Negotiate what you can. Or help support
effective solutions such as broad covenants not to assert from patent
holders.

/Larry 



Lawrence Rosen
Rosenlaw & Einschlag, a technology law firm (www.rosenlaw.com)
Stanford University, Lecturer in Law
3001 King Ranch Road, Ukiah, CA 95482
707-485-1242  *  fax: 707-485-1243
Author of "Open Source Licensing: Software Freedom and 
                Intellectual Property Law" (Prentice Hall 2004)

> -----Original Message-----
> From: stephen@xemacs.org [mailto:stephen@xemacs.org]
> Sent: Monday, October 09, 2006 8:38 AM
> To: lrosen@rosenlaw.com
> Cc: 'Free Software for Business'; mbeinschlag@rosenlaw.com
> Subject: A Primer on Infringing Patents in Software
> 
> Lawrence Rosen writes:
> 
>  > We hope this will clear up some misconceptions about how software
> patents
>  > work, and explain the effects of patent infringement on open source
>  > software. You can find our article here:
>  >
>  >     http://rosenlaw.com/Infringing-Patents-in-Computer-Software.pdf.
> 
> I guess this is somewhat useful (I'm not in a tabula rasa state at the
> moment, it's hard to evaluate), but I don't think it addresses some of
> the biggest issues that developers would want to know about:
> 
> 1.  How do I know if a claim is infringed by my software?
> 
>     An important point here would be that division of the software
>     into modules is irrelevant---it's what the software does when
>     loaded into memory.  Also, even division into programs (only one
>     of which is owned by you!) does not remove all risk, as if your
>     program is used with another so that together they infringe, you
>     may be contributing to the user's infringement.
> 
>     This is described in your article, but to my mind it's hard to
>     grasp from the developer's point of view.  Examples would help.
> 
> 2.  How do claims interact with each other?
> 
>     For example, if I explicitly claim (1) a text-entry widget; (2) a
>     text-entry widget with echo suppression; and (3) a text-entry
>     widget with a button to reset the text to the null string "", have
>     I implicitly claimed a password-entry widget with a reset button,
>     or do I have to enumerate that, too?  Have I implicitly claimed a
>     password widget that allows passwords to contain Chinese
>     ideographs via a separate "input method"?
> 
>     Do these interactions change if the claims are in different
>     patents?  Do they change if the patents are owned by different
>     people?
> 
> 3.  What are the penalties for inadvertant infringement?
> 
> 4.  What does a typical patent license look like?  In particular, can
>     I develop new versions of my software without having to get a new
>     license from the patentholder?  What kind of payment arrangements
>     can I expect?
> 
> Also, the title suggests that this teaches us how to infringe, when in
> fact we'd really rather learn how to avoid that.  ;-)
> 
> Regards,
> Steve