Subject: Re: Examples needed against Soft Patents
From: "Stephen J. Turnbull" <stephen@xemacs.org>
Date: Wed, 29 Dec 2004 20:21:07 +0900

>>>>> "Taran" == Taran Rampersad <cnd@knowprose.com> writes:

    Taran> This is not really about patents, is it? If it were, if it
    Taran> were about protecting the inventions of people... wouldn't
    Taran> that mean hono(u)ring patents for the equipment on which
    Taran> other patents run?

No.  The way a patent works (in the US, anyway) is that you describe a
device, and then make _claims_ about the beneficial things it does.
You can't actually infringe a patent; you can only infringe the claims.

Thus, for a software patent to depend on a hardware patent in the way
you propose, the hardware patent would have to include a claim such as
"on this hardware you can run software that performs this computation"
_and spell out the computation_ in terms of the actions of the
hardware.  If the hardware cannot perform the computation by itself,
the claim is invalid.  If the computation is associative or
commutative, you have to specify that, or your claim doesn't cover
reordered versions of the computation, and so on.  If the computation
runs on hardware not covered by your patent, the claim is invalid,
except in the case where it actually is running on your hardware
(maybe, IANAL).

So, for example, I can patent a "tire" which I claim "is not injured
by rolling on rough roads and cushions both the wheel and the
passengers of the vehicle from such shocks."  You can use the same
manufacturing process and add some value by tying a rope between your
"circular rubber swing" and a tree's limb.  This does not violate my
patent, because I didn't claim it.

So yes, it's true that you can compute the RSA algorithm on Intel
hardware, but you don't have to license Intel's patents if you're
using a Mac.

-- 
Institute of Policy and Planning Sciences     http://turnbull.sk.tsukuba.ac.jp
University of Tsukuba                    Tennodai 1-1-1 Tsukuba 305-8573 JAPAN
               Ask not how you can "do" free software business;
              ask what your business can "do for" free software.