Not to get into the wisdom, desirability, or validity of software patents; also here's the obligatory "IANAL" disclaimer . . .

No license is going to magically make something which infringes on someone's patent not infringe. Licensing might affect the degree that the patent owner can go after users of the infringing code (i.e. the infringer has promised to indemnify them against litigation, but they're still on the hook) but that's about it I believe.

Now the situation of the infringement might make a difference in the remedy imposed. One could imagine Random Megacorp willfully infringing and profiting from J Random Smallbiznezzman's patent being treated more harshly than J Random Student who published an open source program as part of his graduate work which happened to implement a patented algorithm.

If you're really interested, I've been pointed at Web & Software Development: A Legal Guide ISBN 1413300871 as a good resource; I'm perpetually pointing people at it and perpetually leaving it in my Amazon wish list, but Nolo is a respected source for legal guides and information (and you may find more information there; they have a section specifically on patent law).

Update: I just recalled seeing something from /. on M$ licensing any potential patents in Linux to Novel that there's talk about the GPL3 making distributing GPL'd code implicitly grant a license to patents held by the distributers or some such (it's not exactly clear from that article). But this would seem to require the patent owner to be using some GPL'd software, so I don't know if that's what the OP was asking or not.

Hi Fletch,
thank you for your very interesting reply.
The funniest part about it, is that now OSF is chasing sw companies because they make money selling SW with an OSF core.
Regs,
Davide.

You mentioned Copyright, but asked about patents. Copyright laws and patent laws are quite different (and they vary from country to country). Trademarks are covered by yet another body of laws.

One thing is certain. Since people are being persued even when they observe copyright and patent laws, one can definitely be persued when breaking them. It's a question of mitigating risks, a job for a lawyer. Hopefully, you're too small to be worth more than a "Ceast and Desist" request — What's the point of suing someone if you're not going to get anything from it? — but even that could have a major effect on an operation

Hi,

sorry you are absolutely right about the title of my subject.

It should be called patent breaking with open source or similar (anyway as a little excuse I made the post very late in the evening...).

So in conclusion I see, there's no safety!

But at least I got a lot of geek points!

Thanks!

Novice with more geek points.

Pardon... initiate.

I absolutely agree in that the patent system needs a major overhaul. Patents such as those mentioned impede research, thus slowing medical advancements and more. While I could definitely stand on a soap box regarding such problems (and have given that I'm in the bioinformatics field) I feel as though I would be preaching to the choir.

It seems that for a long time open source and artistic licenses flew under the radar of companies with patented software, being deemed insignificant and unworthy of the cost of litigation. However this has changed in recent years as companies are starting to feel the impact of such software efforts (The Monster Arrives: Software Patent Lawsuits Against Open Source Developers).

Given the question at hand - Can the author afterwards be pursued? I would think that it's possible but is it worthwhile for the company? It depends on the degree of "breakage", the magnitude of the problem (how prevalent is it? A handful of users or many users?), the amount of resources spent on troubleshooting, if the problem can be proven to be malicious or was it simply a programming mistake or an unforeseen consequence, etc...

As a developer I honestly don't lose sleep over a company coming after me -- not because my programming is always solid (trust me, it is not) but rather any problems I create truly are not intentional, rather a level of ignorance on my part in not understanding that my code is even capable of causing trouble. I seldom write code that interacts with patented software, but that is not to say that my code could not be used in conjunction with patented software that I have not tested or considered.

Futhermore, if they did come after me, they would really spend much more on the litigation than they could ever hope to get from me since I work in research!! :)

Hi dana,

thank you for your very funny intervention.

I aprreciate it much expecially this last sentence:

Futhermore, if they did come after me, they would really spend much more on the litigation than they could ever hope to get from me since I work in research!! :)

Should I take it as a design pattern?

:)

Yes -- definintely my design pattern!!!

The notion that someone can patent an idea or an algorithm (or a dna sequence, or a mathematical equation) is ridiculous -- however, as we know, in spite of being nonsensical -- and as absurd as it may seem -- these patents actually currently exist.

It's my understanding that most any non-trivial piece of software is going to have ... (it feels silly to even *say* this) ... bits in it that happen to be patented.

The GPL contains language referring to patents. You might have a look at that. I tend to favor the GNU licenses.

Personally, if I released a module, then got harassed about infringing patents, I'd make a big public stink about it to raise awareness of how screwed up the situation currently is.

You ask about safety... I don't know about you, but I'm less concerned about safety and more concerned about repairing the broken patent system.

If you know or have a strong reason to believe that you are about to violate someone's patent, stop, think, think again, think some more, and keep on thinking until you lose interest in doing something that might bankrupt you. Right and wrong are nice principles to live by, but they don't really mean much in court.

Oh, yeah, your question and a direct response: It doesn't matter how you license or don't license a patent infringing work. The judge won't even care to know about the license, because the question to be decided is whether or not your work violated a patent. If you want to fight the system because it is unjust and you don't mind risking bankruptcy to do it, more power to you and we all hope you succeed -- but if you're just trying to make a living (or score geek points) and don't want a potentially capricious court to decide your fate, pick something else to do with your time.

If you know or have a strong reason to believe that you are about to violate someone's patent, stop, think, think again, think some more, and keep on thinking until you lose interest in doing something that might bankrupt you. Right and wrong are nice principles to live by, but they don't really mean much in court.

Every piece of nontrivial code infringes on somebody's patent. When people are patenting double clicking and doubly-linked lists, you can't help but infringe on somebody's patent. Stopping development while the lawyers work out a deal every time you hit a patent would destroy programmer productivity.

A good chunk of these patents would be quickly thrown out if they ever went to court. It's in the best interests of the litigant to make sure things never get there. They offer a reasonable settlement and then go find another company to harass.

The only defense companies have against this is to accumulate a pile of their own patents. If a company sues them, the litigant almost certainly is infringing on their patents, so they can counter-sue. Then everything gets dropped. This game favors big companies--small ones wouldn't be able to accumulate enough patents to defend themselves.

So you're correct, trying to stand up for your ideals is impractical in court, but giving in is an equally bad strategy. Patent law and the surrounding bureaucracy is simply unequipped to handle software right now.

I don't think software patents are necessarily bad, and there are some algorithms that deserve a patent. But the system is completely out of hand as it is.

---

"There is no shame in being self-taught, only in not trying to learn in the first place." -- Atrus, Myst: The Book of D'ni.

You're absolutely correct. I was thinking more of non-frivolous patents, rather than the entertaining a cat with a laser pointer kind.

Some of my clients have been hassled by "low hanging fruit pickers" seeking licensing fees for frivolous patents, and my advice has always been to just ignore them. So far, those folks have all just gone away quietly.

Copyright is another issue, but to break that you should have to actually copy other people's code without the necessary permissions.

Disclaimers: following the suggestions in this post without professional legal assistance might lead to arrest, detention and unwanted intimacy with inmates.

Antonio

Thanks for your words of hope.
And also for the nice disclaimer!

By the way...
possiamo anche parlare italiano.

Ciao alla prossima!
DACONTI