[clug] FOSS patent infringements

Michael Tomkins michft at gmail.com
Thu May 17 14:43:43 GMT 2007

On 16/05/2007, at 10:00 PM, Jason <j.lee.nielsen at gmail.com> wrote:

> So maybe what is needed, (apart from the complete abolishment of  
> software patents and the extreme shortening of the exclusive rights  
> period for all patents ) is for a time period to be set so that  
> after say 3 years of a company being aware of others using their  
> patent without taking formal legal action to attempt to stop it  
> they loose the right to that patent. I'm sure there would be a good  
> case or two to found in property law and squatters rights stuff.
> Jason

Remember a patent is a statutory protection on the method of  
producing something. Not how it looks, what it is or what it  
achieves. So copyright can protect the layout (artistic design) or  
method (literary work ????), and a patent could protect the method of  
production but neither has any place claiming ownership of an idea.  
(which you cannot copyright or patent, and if you don't like it I'll  
cite case law at you.)

The reason in property that the right of an owner can be overridden  
after a period of disuse is that society (read the king and his tax  
collectors) don't like property being idle. This does not make sense  
with patents, an idle patent is a useless patent. A patent is a  
protection of a right, albeit statutory. And patents/copyright were  
both originally a tort (chose in action) rather than a statutory/CL  

So now here is why they cannot logically exist.

And copyright on software still exists,

and patents still exist,

just those silly software patents disappear.

Oh and the M$ stuff is just FUD and should be treated as such. The  
need the money with Vista not even seeming to be at beta level yet.  
Funniest story is of Vista removing IE7 (as a security measure!)  
because it was not recognised in the register, and since IE6 was  
removed during the install of IE7, the user had no way to reinstall  
IE without reinstalling Vista.
Michael Tomkins  BE CompE/LLB
michft at gmail.com
+61 (0) 408 172 142

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