Patents are public

I do a fair amount of open source code development, yet I am not (yet?) against the idea of software patents. I think there are significant problems with the way software patents are implemented in the US, but I don’t find the concept fundamentally odious.

However, I do find corporate bullying using patent infringement as a pretext quite reprehensible. A recent example–to which I will not link so that I don’t make things worse for the coder–really has me annoyed.

In essence, an independent coder reimplemented from scratch and for no commercial gain a program to  duplicate the functionality of a commercial product. The coder then published her/his work with the intent of releasing the code under an open source license. I am not a lawyer, but I think the general gist of a patent is that it is illegal to distribute a product that is under patent protection without first obtaining a license from the patent holder. As far as I know, it is not illegal in the USA to discuss patents in public nor to publish, for example, plans for making a better or different patent-protected Hovercraft Eel Sensor. It only becomes an issue if you try to distribute a product based on those ideas without a license. The ideas and discussion thereof are public. The use of ideas in products is protected.

The coder in our story has simply published plans (i.e., source code) for making a different version of a (possibly) patent-protected product. Nowhere does the coder indicate her/his intent to distribute a product (i.e., executable code) based on the plans. In spite of this, our coder gets a threatening email from the V.P. of the corporation that makes the commercial product citing (without specificity) that the published work infringes on their patents.

It may also be worth noting that the coder does not appear to have done any reverse engineering to discover how the software works. So if the V.P. actually means “trade secret” when he actually says, “patent,” then there’s nothing there either.

I am not a lawyer, but I utterly fail to see the grounds for the corporate entity’s gripe in this and similar cases. Also, in the particular case in question, you cannot help but notice the extreme vagueness in the communications from the corporate entity. Under these circumstances, one would easily be forgiven for thinking that the corporate entity knows it has nothing to stand on and that its strategy is simply to threaten a costly legal process against the coder. They know that  lone coders will almost certainly comply with threatening requests to spare themselves the burdens of the situation. I am not a lawyer, but in common-person speak we sometimes use the word “extortion” for this strategy.

You can’t have it both ways: patent protection and protection from public scrutiny. Patents are public.

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