Subject: Re: Why software patents are bad
From: Bernard Lang <>
Date: Wed, 22 Sep 1999 18:23:36 +0200

On Wed, Sep 22, 1999 at 05:31:55PM +0900, Stephen J. Turnbull wrote:
> Addressees trimmed.
> >>>>> "Bernard" == Bernard Lang <> writes:
>     Bernard> I have been talking to an IP lawyer who told me that for
>     Bernard> patenting, what you accomplish is what matters more than
>     Bernard> how you do it. The example he gave me is that if your
>     Bernard> system filters e-mail for some purpose, the patent will
>     Bernard> cover the idea of mail-filtering regardless of how it is
>     Bernard> achieved.
> I respectfully submit that you did not fully understand what he was
> talking about.  (Or - horrors - he didn't.)

most likely the former ... respect is not needed, as long as you don't
hit me.

> It is _exactly_ how it is accomplished that matters.  I really can't
> imagine that French law differs that much from U.S. law in this
> respect.  You can't patent an idea until you can demonstrate how to
> implement it; it is that demonstration that justifies the award of a
> patent, and only for the implementation, not for the specification.

I thought so. But I made the argument that patenting encourages hiding
code (so as to avoid infringement detection) and that infringement
actions are more likely to concern interfaces and protocoles. His reply:

    The availability of source code has never been a big factor, at
    least here in the US.  There is a governing principle, Doctrine of
    Equivalents, which says basically that if you are doing the same
    thing in a similar way, you still are infringing.  So if I have a
    firewall application checking on incoming addresses, it probably
    won't matter how I do the checking, if I am claiming firewall
    protection in general.  For this case, access to the source code
    would be ireelevant.
    Being against software patents because you don't have access to
    source codes to check for infringement is not well supported with
    what goes on in industry.

> Now, of course once Xerox patents a particular device for moving paper 
> through a plain paper copier, manufacturers of treated-paper copiers,
> faxes, laser printers, and newpaper publishing equipment must all get
> licenses if their machines use that device (unless Xerox was stupid
> enough to mention "plain paper copier" in their patent application).
> This might be what your IP lawyer was talking about, although it
> doesn't really fit the mail-filtering analogy as you stated it.

  you have the way he stated it, above


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