Subject: software patents are (almost) good
From: "Stephen J. Turnbull" <stephen@xemacs.org>
Date: Fri, 04 Jul 2008 10:20:49 +0900

Thomas Lord writes:
 > Stephen J. Turnbull wrote:

 > > I think Tom is confusing the OSL, which is a software license that
 > > contains a patent license, with a certain "covenant" that is
 > > effectively a public (pure) patent license (ie, the licensor hasn't
 > > necessarily written, let alone distributed, any software).

 > I don't think that I'm confused but I gather that I was unclear.
 > 
 > If one has a patentable idea I would not suggest simply "giving
 > it away, gratis" to the open source industry.   Rather, patent
 > it!  Practice the patent in OSL form to protect software freedom.
 > Otherwise seek to exclude others from the practice of your patent
 > unless they pay you rent.   If someone wants to practice your patent
 > in a proprietary program, charge them rent! 

Sure.  My point is that this works just as well with the GPL as with
the OSL, modulo any differences between the GPLv3's "essential patent
claims" and the OSLv3's "patent claims ... that are embodied in the
Original Work".

 > If someone wants to practice it in a device, charge them rent!

As far as I can see, as long as the device is actually a ROM, or
otherwise "software compiled to silicon," and source is distributed
with the device, you can't charge rent under either the GPL or the
OSL.  Neither one requires that users be able to modify the instance
of program that they are actually using, only that they be able to
copy, study, modify, and redistribute some instance of the program.

 > Rather, lobby for or argue in court that the practice of the four
 > freedoms as characterized by OSL should not be recognized as
 > making, using, selling, or offering to sell in the ways that can be
 > excluded by patent protection.

I suppose this would have to be done by legislation; there is no fair
use or personal use concept in patent law AFAIK.