Subject: Re: on software freedom and patents
From: Thomas Lord <>
Date: Mon, 04 Dec 2006 10:02:15 -0800

Stephen J. Turnbull wrote:
>  >   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?

Uh... the unofficial reading list of this mailing list for the past year? 
There is, btw, quite the free education to be had from lists like FSF
*if* one uses the list, peppered as it is with experts from business, law,
and economics, as a homework assignment to read up on much of what
is referred to.   At least that is my experience.

More usefully:

I assert that patents "grant" rather than "create" rights.   Below I
will explain why I want to do that and why I am justified in doing

I want to use that statement  as an axiom while constructing
a novel "defense" for infringement-by-exercise-of-software-freedoms.
I put "defense" in quotes because the argument isn't that the infringement
is permitted but, rather, that there is no infringement.    An exercise
of software freedoms can not infringe a patent because if it could, that
would imply that Congress has created a new right for the patent holder
rather than simply securing an existing right for him.

I am justified because the statement, that patents "grant" rather
than "create" rights has several sources.    These sources are all
"common knowledge" and even Wikipedia knows
about most of these so I have not included actual cites.   Let me know
which claims you think are not trivially true:

   1. It is, of course, the text of the Constitution, at least as I
       understand English.    To "secure" rights, as to secure any
       object, means to bring a thing under a purposeful control.
       One never creates an object X by "securing X", one merely
       preserves X for a particular, intended mode of use.  "A wind
       is coming!  Secure the sawdust pile!" does not create a
       sawdust pile.

   2. Looking back in history to Florence, Venice, and King James,
       my interpretation accurately describes the concerns that
       motivated "letters patent" (and similar) and accurately describes
       how they were used.

       The point of a "letter patent" was that if someone was making
       money by virtue of the product over which you have monopoly,
       you (letter holder) could present them this
       letter from the sovereign and, on its authority, make demands
       (since you alone have right to make those sales).    Absent a
       "letter patent" those sales belong to the infringer but a "letter
       patent" takes those sales from the infringer,
       grants them to the holder of the letter, and furthermore punishes
       the infringer for making those sales without permission.

    3. As consitutional and common law gained control over the
        patent system in England and later the United States,
        some things about the patent system changed, but there was
        no shift from "granting" to "creating" rights. 

        The system did change, of course:  As with
        copyright's "author", it was necessary to "invent the
        inventor" and, in patents, there was a new problem of
        defining "novel".   Those logical maneuvers were necessary
        to legal theory to democratize the issue of patents (rather than
        leaving that power with a hereditary monarchy) but they
        did not change the general form of the "bag of rights" a
        patent holder receives.

    4. Certain precedents, such as TRIPS, the right to repair and maintain
        a patented invention you have purchased, and the right of
        a farmer to avoid infringement by simply destroying any
        GMO crops his fields have made without license, prove that
        the patent grants of exclusive rights to "make", "sell", and "use"
        are not absolute.  On the other hand, if you start making yourself
        a 20 year supply of light bulbs out of nothing more than scraps
        of material in your own basement -- prosecutable infringement
        can take place.

        Such precedents leave an open question?  How is the line around
        making, selling, and using actually drawn? Why are there some
        exceptions but not others?   The decisions that enabled these
        exceptions give partial, ad hoc explanations but they are not 
        unified in terms of some relatively objective, overarching
        legal theory.   My original contribution here -- the elaboration 
of what
        it means to software freedom that patents grant rather than 
create rights
         -- has the virtue of reaffirming the general correctness of 
that precedent,
        in some cases even reaffirming the reasoning used to reach those 
        all while providing straightforward, logical, historically 
consistent reading
        of all of the relevant texts.    In short, I (humbly and 
contextually ludicrously, I
        confess) offer my axiom and subsequent reasoning as, for example,
        a line of reasoning one might reasonably ask the SCOTUS to adopt.

>  >   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.

Hopefully you at least now better understand my alternative reading:
the rights secured for the inventor are exclusive property rights that
would arise naturally by virtue of the act(s) of invention and that would
otherwise belong to whoever seized them.   Patent law says, of those
pre-existing rights, that they belong to the patent holder.   That does
change the way those rights are exercised in society but it does not
create new rights out of whole cloth.

Your alternative, I think, is roughly that a patent holder's rights to 
making, selling, and using an invention are roughly absolute and have
nothing to do with actual trade per se.    Your version of the rights to 
exclude is
checked, only in the smallest ad hoc ways by particular quirky court 
along the way.    Your interpretation has major problems that I think 
make it
ultimately unacceptable:   (a) you have squarely assigned the courts a role
in social policy making rather than interpreting the law -- those ad hoc
exceptions, in your theory, are social policy judgments under the false flag
of resolving contradictory demands of written law.  (b) all of the concerns
of the FLOSS community about the logical absurdity of software patents
(giving the highly recombinant and frequently convergent nature of software
inventions) come home to roost under your interpretation (but not mine).
In short, all of those FLOSS community objections are best understood
*not* as an argument against software patents *at all* but, rather, as an
argument that the "absolutist exclusion" principle you espouse is simply

In that light, all of the current controversies, fights, and political 
in the FLOSS community reveal a new meaning.    We have a picked
a correct fight: that the application of patent exclusions to the exercise
of software freedom leads to absurd results.   Unfortunately, we, the FLOSS
community, have offered an over-reaching solution: the elimination of
software patents.   With all due respect, RMS and Moglen have gone
a few steps too far.

Our bad suggestion for a solution is, as we all know, a non-starter.
Smoke and sparks in the EU aside, abolition of software patents is
not seriously on the table.    Well, my theory helps to explain *why*
abolition isn't on the table.     When pro-patent software firms
testify before the FTC they point how patents enabled them to make
progress.    It's just a fact: considered in isolation, their case shows
patents working as intended.     Of the benefits of the patent system
they seek to protect, few (if any) are in the slightest bit
harmful to free software.    Small start-up X filed suit against
big-company Y and got a life-saving settlement.    Or, more concretely,
RSA Inc. was able to beat back the NSA because patents helped it
raise lots of capital.    Patents, as intended, regulated the trade in
certain sets of proprietary products and the incentives played out
as they were supposed do.     The exercise of software freedoms (on
free software programs) is a separate issue.  It does not matter
to free software whether or not Apple can be sued over Hypercard
or whether RSA looks to receive a cut of the profits from every
proprietary PKI product sold to a bank:  neither hypercard or the
proprietary PKI code are free software in the first place -- the free 
movement has no need to and no business in defending those things.

Our bad suggestion to abolish software patents comes from a
good motivation: the receipt of claims from software patent holders
that certain free software projects infringe.  Should
the PGP project have refrained from implementing RSA?   Should
the FSF have invested in alternatives to GIF?   As a practical matter,
those decisions were probably "forced tactical adaptations" because
the cost of defense against a single infringement suit is so high.
Nevertheless, at some point we have to stand up and point out that
the threats we retreated from were not legitimate and we were not
obligated to retreat:   a *single* defense is sufficient for *all* copyleft
free software projects.

> 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?

I think that what I write actually sums up everything you know
about patents and draws a simple conclusion from that.   So, if you
are still wondering what factual claims I make lack support, point
those out and perhaps I can help.