Subject: RE: A Primer on Infringing Patents in Software
From: "Lawrence Rosen" <lrosen@rosenlaw.com>
Date: Mon, 9 Oct 2006 14:36:19 -0700
Mon, 9 Oct 2006 14:36:19 -0700
I'm sorry to disappoint you, but I'm only trying to help educate free and
open source folks about how patents affect us. The subject line was
intentional. There has been too much hypothesizing on these lists without
full understanding of how software patents actually work. Mike Einschlag and
I thought a brief primer might help. 

 

If anyone wants to start different threads, on this list or another, about
GPLv3, or about various proposals to cure the patent system or transform the
patent licensing business, I'll look for you there.

 

/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)

  _____  

From: Thomas Lord [mailto:lord@emf.net] 
Sent: Monday, October 09, 2006 2:06 PM
To: lrosen@rosenlaw.com
Cc: 'Free Software for Business'; mbeinschlag@rosenlaw.com
Subject: Re: A Primer on Infringing Patents in Software

 

Lawrence Rosen wrote: 

 > Did the permissions required of RSA in conveying the 16-bit PLP
 > necessarily allow the 1024-bit version?
 
I hope a real lawyer will speak up,
      

Me too.
    

 
Me too. 
 
I hope the licensors of the (GPL-licensed?) software speak up. It depends
entirely upon them, since they own all relevant copyrights and patent
claims, correct? If not, I hope the relevant patent owners speak up here
about the language of their patent licenses.
 
I am as interested as you in learning how GPLv3 will finally resolve such
questions, if indeed it can.
  




As an aside, don't you have some stake in this re the IC covenant?
Aren't you relying on a particular interpretation if you say the
covenant is GPL compatible?


In more depth, turning around your original question to this list....

I'm interested in creating incentives for software researchers
and developers while still advancing the idea of free software.
I think, or at least hope, that copyright and patent law can help
to do that.

The *idea* of free software (regardless of what any version of
the GPL says) is to preserve, protect, and promote Stallman's
famous "four freedoms" in which I would read freedoms to 
combine free software with hardware, or realize it as hardware,
subject only to transitivity requirements similar to those found
in GPL.

Incentives, however, are at least superficially contrary to the
idea of free software.   If a program or invention is free in
the free software sense, the author/owner has no monopoly that
is worth much at all (the monopoly being reduced to, basically,
"keep my name on copyright notices").

I've put forward two ideas towards that aim:  easier-to-obtain-
-and-defend patents based on putting a reasonable price on
public licensing for those patents, and proprietary copyright
licenses that include a ransom price for public buy-out.

I'd like to see the IC covenant as a third way but I don't really
see it.   Nothing in that covenant adds up to the idea of free
software until the patent expires.    

So, is there something I'm missing in the IC covenant that 
really does mean it helps free software?   Or are there tweaks
to the covenant, along the lines I've described, that you 
would consider (and, since "no" I presume, "why not?")?

Thanks,
-t








 
/Larry
 
 
  

-----Original Message-----
From: Thomas Lord [mailto:lord@emf.net]
Sent: Monday, October 09, 2006 1:04 PM
To: stephen@xemacs.org
Cc: lrosen@rosenlaw.com; 'Free Software for Business';
mbeinschlag@rosenlaw.com
Subject: Re: A Primer on Infringing Patents in Software
 
stephen@xemacs.org wrote:
    

Thomas Lord writes:
 
 > The program can technically be modified to allow 1024-bit primes
 > but that creates a new program.  No example of "making, using,
 > or selling" the *conveyed* program, even within the GPL
 > restrictions, can cause it to use 1024-bit primes.
 >
 > Did the permissions required of RSA in conveying the 16-bit PLP
 > necessarily allow the 1024-bit version?
 
I hope a real lawyer will speak up,
      

Me too.
 
 
    

but IMO the fact that you ask this
means you haven't wrapped your head around patents yet,
      

The question is not about what is covered by a patent, exactly, but
rather what kinds of permissions the GPLv3d2 requires the controller
of a patent to give.
 
On its face, GPLv3d2 seems to implicate those permissions with
copyright law.   The question is whether the implication limits
copyright law to the function of identifying a set of claims to
which Alice is giving blanket permission, or whether copyright
law limits the permissions that Alice must give (and then, "how?").
 
 
    

but are still
thinking in terms of copyright.  The permissions apply to the claims
as written in the patent application, not to the program conveyed.
 
 
 
      

 
 
-t
    

 
 
  

 



I'm sorry to disappoint you, but I'm only trying to help educate free and open source folks about how patents affect us. The subject line was intentional. There has been too much hypothesizing on these lists without full understanding of how software patents actually work. Mike Einschlag and I thought a brief primer might help.

 

If anyone wants to start different threads, on this list or another, about GPLv3, or about various proposals to cure the patent system or transform the patent licensing business, I'll look for you there.

 

/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)


From: Thomas Lord [mailto:lord@emf.net]
Sent: Monday, October 09, 2006 2:06 PM
To: lrosen@rosenlaw.com
Cc: 'Free Software for Business'; mbeinschlag@rosenlaw.com
Subject: Re: A Primer on Infringing Patents in Software

 

Lawrence Rosen wrote:

 > Did the permissions required of RSA in conveying the 16-bit PLP
 > necessarily allow the 1024-bit version?
 
I hope a real lawyer will speak up,
      
Me too.
    
 
Me too. 
 
I hope the licensors of the (GPL-licensed?) software speak up. It depends
entirely upon them, since they own all relevant copyrights and patent
claims, correct? If not, I hope the relevant patent owners speak up here
about the language of their patent licenses.
 
I am as interested as you in learning how GPLv3 will finally resolve such
questions, if indeed it can.
  




As an aside, don't you have some stake in this re the IC covenant?
Aren't you relying on a particular interpretation if you say the
covenant is GPL compatible?


In more depth, turning around your original question to this list....

I'm interested in creating incentives for software researchers
and developers while still advancing the idea of free software.
I think, or at least hope, that copyright and patent law can help
to do that.

The *idea* of free software (regardless of what any version of
the GPL says) is to preserve, protect, and promote Stallman's
famous "four freedoms" in which I would read freedoms to
combine free software with hardware, or realize it as hardware,
subject only to transitivity requirements similar to those found
in GPL.

Incentives, however, are at least superficially contrary to the
idea of free software.   If a program or invention is free in
the free software sense, the author/owner has no monopoly that
is worth much at all (the monopoly being reduced to, basically,
"keep my name on copyright notices").

I've put forward two ideas towards that aim:  easier-to-obtain-
-and-defend patents based on putting a reasonable price on
public licensing for those patents, and proprietary copyright
licenses that include a ransom price for public buy-out.

I'd like to see the IC covenant as a third way but I don't really
see it.   Nothing in that covenant adds up to the idea of free
software until the patent expires.   

So, is there something I'm missing in the IC covenant that
really does mean it helps free software?   Or are there tweaks
to the covenant, along the lines I've described, that you
would consider (and, since "no" I presume, "why not?")?

Thanks,
-t






 
/Larry
 
 
  
-----Original Message-----
From: Thomas Lord [mailto:lord@emf.net]
Sent: Monday, October 09, 2006 1:04 PM
To: stephen@xemacs.org
Cc: lrosen@rosenlaw.com; 'Free Software for Business';
mbeinschlag@rosenlaw.com
Subject: Re: A Primer on Infringing Patents in Software
 
stephen@xemacs.org wrote:
    
Thomas Lord writes:
 
 > The program can technically be modified to allow 1024-bit primes
 > but that creates a new program.  No example of "making, using,
 > or selling" the *conveyed* program, even within the GPL
 > restrictions, can cause it to use 1024-bit primes.
 >
 > Did the permissions required of RSA in conveying the 16-bit PLP
 > necessarily allow the 1024-bit version?
 
I hope a real lawyer will speak up,
      
Me too.
 
 
    
but IMO the fact that you ask this
means you haven't wrapped your head around patents yet,
      
The question is not about what is covered by a patent, exactly, but
rather what kinds of permissions the GPLv3d2 requires the controller
of a patent to give.
 
On its face, GPLv3d2 seems to implicate those permissions with
copyright law.   The question is whether the implication limits
copyright law to the function of identifying a set of claims to
which Alice is giving blanket permission, or whether copyright
law limits the permissions that Alice must give (and then, "how?").
 
 
    
but are still
thinking in terms of copyright.  The permissions apply to the claims
as written in the patent application, not to the program conveyed.
 
 
 
      
 
 
-t