Subject: Re: Examples needed against Soft Patents
From: Russell McOrmond <>
Date: Sat, 25 Dec 2004 16:03:43 -0500 (EST)

(Sorry for joining this discussion late)..

On Mon, 20 Dec 2004, Norbert Bollow wrote:

> This discussion overlooks the fact that there are significant parts of
> the world where software patents don't exist.

  I'm not sure that matters for larger projects.  Patents aren't violated 
by those who 'implement' a patented process, but by those who 'use' a 
patented process.

  If you develop software in a country without software patents and then
an unsuspecting user downloads it in a country with confirmed software
patents (USA, Japan) or illegal software patents (EU countries, Canada)
then it is the use that is liable.

  This government created chill harms the reputation and viability Free
Software given there is no way for anyone in this chain of development and
software use to actually know whether they are violating software patents.  
They can't license these patents without violating the definitions of
Free/Libre and Open Source Software (IE: software patents and FLOSS are
incompatible by definition, unless the software patent is rendered
harmless through a royalty-free license with no field of use
restrictions), and they aren't going to have the money to fight the vast
majority of software patents (60-95% estimated) that would not pass
adequate tests of useful/novel/unobvious that would happen in a court.

> If someone asserts a patent which can be worked around, Free Software
> projects will often be willing to "go the extra mile" so that their
> software can be legally distributed as Free Software even in those
> countries which have a totally broken legal system.

  When bad quality patents are used in an interface, they are nearly 
impossible to innovate around and remain compatible with that which is 
being interfaced with.

  This is why many academics have suggested that there should be a Fair 
Use (fair dealings) exemption to patent law for implementing interface 
standards.   I have further suggested that there should be a Fair Use 
exemption to patent law for royalty-free implementations, effectively 
carving out FLOSS from patent policy.

  As to the business community helping to fix this: we have extremist
ideologues on one side (those on the side of Greg Aharonian who go so far
as to say that software shouldn't be covered by copyright but only patent.  
Greg may know a fair bit about prior art searches, but he is ideologically
opposed to FLOSS), and legitimate software businesses (FLOSS and
non-FLOSS) who don't spend time lobbying and who treat bad government
legislation like a "natural" disaster they have no control over.  I have
found it extremely hard to get most legitimate software businesses
involved in the legislative process, even when their business survival
depends on it.

BTW: Canadians in this list who are interested may want to watch for updates.  I will be trying to launch
challenges to existing patent office practices in Canada much like what
the Europeans have been doing.  Jurisprudence says we should not have pure
software patents in Canada, but CIPO has been granting them anyway.

 Russell McOrmond, Internet Consultant: <> 
 Have you, your family, your friends (, your enemies) signed the
 Petition to the Canadian Parliament for Users' Rights in Copyright?