Date: Wed, 18 Apr 2001 23:20:51 -0700 From: "Ted Mittelstaedt" <tedm@toybox.placo.com> To: "Terry Lambert" <tlambert@primenet.com> Cc: "Rahul Siddharthan" <rsidd@physics.iisc.ernet.in>, "David Johnson" <djohnson@acuson.com>, <freebsd-advocacy@FreeBSD.ORG> Subject: RE: Windriver, Slackware and FreeBSD Message-ID: <004d01c0c898$e1f9c2c0$1401a8c0@tedm.placo.com> In-Reply-To: <200104181748.KAA17086@usr02.primenet.com>
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>-----Original Message----- >From: owner-freebsd-advocacy@FreeBSD.ORG >[mailto:owner-freebsd-advocacy@FreeBSD.ORG]On Behalf Of Terry Lambert > > >> >Consider the following scenario: Apple has a patent on some very >> >low-level algorithm, but doesn't tell people. (They do claim a patent >> >on theming, so why not on some OS-related thing?) Their people (no >> >doubt well-meaning) contribute it to FreeBSD. >> >> The second that an Apple employee formally contributed patented source >> to FreeBSD, it would tremendously weaken the Apple patent to the point >> where it would impede it's enforceability. > >Not really. What weakens a patent is distribution of an >embodiment of the patent under license, since it grants rights to >use the patent, unless they are explicitly disclaimed. > This is what I meant by saying "formally contributed patented source" ie: I meant a formal contribution as one in which the copyright is assigned to the FreeBSD (or whatever) distribution. I'd assume that the Apple employee making the copyright assignment (or extending permission to use the patent under license) claims to have authority to make such a deal. As you state, an Apple employee that just makes an ad-hoc contribution of source, without identifying that it's patented by Apple, is not granting rights to Apple's patent. >> >> It would take a couple years before becoming well entrenched, >and if Apple >> waited that long before doing anything about it, the patent would be >> virtually unenforceable. Anyway, FreeBSD already went through this >> with AT&T. > >A patent is not like a Trade Secret. It is enforcible until it >expires. > I think that specifically, what you mean is that the patent _has value_ insofar as the relationship between the patent holder and the licensee is contractual and that contract is what is enforcible for the life of the patent. The issue I was attempting to point out (and didn't do a good job of it, obviously) is the grey area where, for example an Apple employee makes a formal contribution of Apple's patented source (ie: a copyright assignment, or you could also call it a contractual relationship of sorts) to FreeBSD, then years later Apple's lawyers come up out of the sewer and say "Hey, so and so had no authority to grant that license, and so therefore you have no permission to use the algorithem" This is where I think something like this could become unenforceable, because if the FreeBSD Project were to go before a court and show documentation that the Apple developer that made the copyright assignment could be reasonable expected to have such authority at Apple, it would really throw a wrench in Apple's attempt to revoke the permission. I think that further most courts would take the attitude that it wasn't the FreeBSD Project's responsibility to be familiar with Apple's internal corporate procedures on who has signing authority and who does not, and who has authority to speak for the company and who does not. > >These days, companies just keep information to themselves (the >U.S. allows patents upt to 1 year following publication, but no >more than that, and by treaty, the WIPO respects these delayed >patents internationally). When someone starts to make money, >that person usually files a patent, then the company that had >the information does the same, and demonstrates "prior art", >thus stealing the patent via trade secret prior art, so they >really haven't gotten rid of submerged patents, what they've >done is forced companies to be less forthcoming in their data >publication (exactly the opposite of the intent of the basis of >intellectual property law in the U.S. Constitution). > Yes, there is now an entire cottage industry that is being created of people that do nothing but attempt to dig up prior art examples of stuff that people are attempting to either patent, or overturn the patent on. :-( >In any case, what this boils down to is that they could sue >anyone using FreeBSD who happened to end up having deep pockets, I'd then assume that the FreeBSD user could then turn around and sue the FreeBSD distributors for presenting FreeBSD as an unencumbered distribution, when in reality it had encumbered code in it. >and collect for any use of the patented algorithm up to 20 years >minus one day from their filing date, unless you could demonstrate >that they themselves licensed the patent to you. Yes, this is the key to the whole debate - going back to Rahul's original supposition, the $64 question is does: "Their people (no doubt well-meaning) contribute it to FreeBSD." constitute a licensing of the patent to FreeBSD. Untimately I think that the boiled down scenario you are describing isn't complete, since if any patent holder tried to do that it would immediately turn into a fight between The FreeBSD Project and the patent holder. What a mess. I cannot imagine a scenario that would be worse for the patent holder from a public relations standpoint. Of course, it does appear that most people who are attempting to enforce software patents these days are market-losers. > >P.S.: The reason for the nominal fee on the source licenses from >SCO and Sun is to ensure that the license is valid and limited >by contract, since a valid contract requires the exchange of >consideration. Yes, however I belive that the consideration doesen't have to be monetary, it could take the form of an exchange of patent rights, for example. >This is the same argument that UCB used to yank >the Net/2 distribution as part of the USL/UCB settlement >agreement, since if you did not pay for the distribution, there >was no consideration, and without the consideration, they could >void the license, even if there were no explict contractual >clause permitting voiding. > >P.P.S.: This is also why Apple insisted on paying a token amount >to UCSD for rights to use their P-system. When UCSD decided that >it had value and removed it from distribution, they were unable >to voide Apple's license, since consideration had been given to >UCSD for Apple's license. Apple still has the only non-revokable >license to the UCSD P-system. Unless you count JAVA as the >successor to it, of course. > Cool - I hope that UCSD wasted a lot of money on lawyers only to be told that in a court. Ted Mittelstaedt tedm@toybox.placo.com Author of: The FreeBSD Corporate Networker's Guide Book website: http://www.freebsd-corp-net-guide.com To Unsubscribe: send mail to majordomo@FreeBSD.org with "unsubscribe freebsd-advocacy" in the body of the message
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