Policy on code covered by patents but not compiled?

[Nathanael Nerode <neroden@twcny.rr.com>]

Consider the following situation:
* Code (say MPEG encoder code) is considered to be covered by patents
* Those patents are considered to be actively enforced
* Code implementing an MPEG encoder is shipped in a source package
* This code is not compiled or used, and the user is not encouraged to
  compile it or use it, and is actually warned against compiling or using it
  without a patent license.

Now, it seems to me that this shouldn't create any legal patent problems.
Under patent law, describing how to perform a patented process is supposed
to be legally protected -- in fact, it's required under the patent publication
laws.

Actual use of the patented process is restricted, of course, but the situation
I just described is specifically intended to discourage and prevent use, while
allowing people to study the code.

How debased is our patent system?  Do the lawyers or people paying attention
to the status of legal cases think that this is safe or not (or safe in some
countries and not in others)?

The point of this question is that it means the difference between
(1) shipping a modified "upstream" tarball to delete patent-encumbered code
and
(2) deleting/disabling the patent-encumbered code in the .diff.gz

Obviously we would prefer (2) for reasons of policy and practicality.

-- 
Nathanael Nerode  <neroden@twcny.rr.com>

"(Instead, we front-load the flamewars and grudges in
the interest of efficiency.)" --Steve Lanagasek,
http://lists.debian.org/debian-devel/2005/09/msg01056.html