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Re: libdts patent issue?

Michael K. Edwards wrote:
> On 7/19/05, Arnoud Engelfriet <galactus@stack.nl> wrote:
> > That's basically how patent law works in every area. You can
> > publish the knowledge but not apply the knowledge to make, use
> > or sell a working device or actual product. And a book that
> > humans can read is not a product in patent law.
> Still a bogus distinction.  If the book says, "scan me and use me as
> an implementation, screw the patent holder", I see no reason which it
> wouldn't be every bit as infringing as a machine sold to end users in
> build-it-yourself kit form.

Don't confuse inducement or contributory infringement with
direct infringement. You can't claim "a book containing instructions
that when loaded into a computer execute the method of claim 1"
so there cannot be direct infringement by selling such a book.

There are many people who come up with tricks like build-it-yourself
kits, omitting a small element and so on. That's why the law also
recognizes contributory infringement and penalties for inducing
others to infringe. But those concepts are based on a different

> > Right, although there's lots of legal concepts like contributory
> > or vicarious infringement that could come into play. But I don't
> > see how distributing a .c file can be held a direct infringement
> > of a patent on a "computer equipped with code for performing X".
> AFAICT this is not correct under your law or ours; statutes and
> rulings that protect "staples of commerce" and components with
> substantial non-infringing uses would not protect a "just add water
> (solder, computer)" kit.

Like I said, that wouldn't be _direct_ infringement.

>  Whether this goes by the name of
> "contributory" or "vicarious" instead of "direct" infringement makes
> little or no difference.

For contributory infringement you need additional evidence.
Contributory infringement is knowingly selling or supplying an item
for which the only use is in connection with a patented invention.
If you had a good faith belief the item had non-infringing uses,
then you're not contributing to infringement.

Also the penalties tend to be different. So I do think there is
a difference.

> > The European standard is that the claim must cover a piece of
> > technology: a device or method that exhibits a "technical effect".
> > And no, I don't have a definition for "technical".
> In the US, it's part of what the courts have read into 35 USC 101's
> "new and useful process, machine, manufacture, or composition of
> matter".  Even a "process" has to be "useful" for a particular
> industrial or commercial purpose in order to be patentable.  Again,
> see In re Alappat.

Right, although your "useful" is generally broader than our
"technical". State Street Bank's patent was "useful" but not

> > The problem is exactly the same: European patent law does not
> > exclude patents on mathematical methods, but only on mathematical
> > methods _as such_. Apparently this is not the same thing for the
> > people who wrote that law. They may have been wrong, but if this
> > is the law, then that's what we have to work with.
> Can you point me to an appellate decision that speaks to this
> distinction, even if that isn't dispositive under your system?

The law says so: articles 52(2) and (3) EPC.

The EPO's Board of Appeals has issued several decisions that
discuss this article:
(see page 12 of the PDF, sections 4 & 5)
(see page 12, similar reasoning for a business method)

The Germans issued a somewhat similar decision in 2000:


Arnoud Engelfriet, Dutch & European patent attorney - Speaking only for myself
Patents, copyright and IPR explained for techies: http://www.iusmentis.com/

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