Subject: Re: on software freedom and patents
From: "Stephen J. Turnbull" <>
Date: Sun, 03 Dec 2006 18:15:33 +0900

Thomas Lord writes:

 >     Stephen> It might be nice if patents worked as you propose,
 >     Stephen> but they don't.

 >  That is misleading because we are talking about areas that are
 >  not settled law.

AFAIK they *are* settled law; it's very possible I've gotten the
details wrong, of course.  But the fact that the grants involved in a
patent are well-understood is precisely what Larry Rosen likes about

 >   This has nothing to do with the "implicit patent license
 >   doctrine".

Of course it does; the GPLv2 nowhere explicitly grants a license of
any patent.  It merely states that if those who receive the software
from you don't get such license, you must refrain from distributing
it.  Many other licenses have even less to say about patents.

 >   Very briefly: patent law (at least in the US) does not
 >   *create* new exclusive rights.  Rather, it *grants*
 >   some exclusive rights that would otherwise exist (for someone)
 >   to the inventor.

Excuse me?  Without the patent there would be no exclusion.  What is
your source for this statement?

 >   For example, whenever a consumer buys a lightbulb, a unique
 >   contract is executed: that customer's money in exchange for
 >   that lightbulb.  That is an exclusive contract:

Actually, AIUI in law a spot exchange is no contract at all.  Nor do I
see what contracts have to do with the issue.  It's all about the
exclusive right.  The fact that the patentee grants 1 or 1,000,000,000
people licenses does not affect her possession of the exclusive right,
nor does making contracts to make such grants.  Only a sale of the
exclusive right itself affects it.

Furthermore, if the patentee makes those grants unilaterally, she can
withdraw them unilaterally (subject to the doctrine of "reliance",
which seems a thin reed to lean on).

What you write is completely at variance with everything I think I
know<wink> about patents.  Do you have an authoritative source for
your statements?