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SubjectGPL and s/w patents [was Re: Article: IBM wants to ...]
On Mon, Dec 21, 1998 at 05:17:16PM -0600, Michael Elizabeth Chastain wrote:
> IBM is not saying "we want a BSD-like license where we can hoard our
> enhancements." They just don't want to lose our patents in other products
> if they write linux kernel code and give it away.
> IBM is not looking for a license that permits them to hoard their code.
> They are looking for accommodation so that they can distribute Linux but
> not surrrender all their patenent rights everywhere.

IBM doesn't lose any patent protection if they give away code that
implements patented processes/methods - after all, they have patented
(ie: opened to public inspection) them in return for exclusive control
over the USE of said processes/methods. In fact, making an implementation
thus available furthers the opportunities for them to impose license/use
fees and restrictions on anyone who USES the patented method implemented
in such GPL'd code.

The GPL accomplishes its stated purpose in this instance - the CODE
is available to be used. Patent law also secures the patent holder's
reward for obtaining the patent - the METHOD is available to be used,
with its USE subject to whatever restrictions the patent holder may
wish to impose on users.

The fact that such software is GPL does *not* make it or its use
sovereign - it is merely available, with use of patented methods
subject to license and permission of the patent holder. The GPL
is helpless to protect code/user sovereignty from patent holders'
restrictions on use.

The ultimate purpose of the GPL is handily thwarted by software patents
- GPL s/w which incoporates patented methods is redistributable, but
its USE is not sovereign, and USERS are not sovereign in their use of
the software.

It can also be argued (and is, ad nauseum) that the original constitu-
tional intent of the (U.S. - and probably others) patent system [To
promote the Progress of Science and the useful Arts] is sorely mal-
served by (especially) software patents, and that such progress stands
to be impeded, rather than promoted.

Part of rms's ingenious foresight was to recognize a long time ago that
sovereignty (for both s/w and its users) requires both the GPL *and*
the discouragement of s/w patents - thus the LPF et al. The growing
tidal wave of (trivial?) s/w patents (and the USPTO's complicity in
1) patentng s/w at all (anathema before the mid-80's [algorithms vs.
processes] and to 2) patenting the most trite [ie: non-inventive,
obvious] of programming methods) encumbers otherwise sovereign
software every bit as onerously as proprietary copyrights ever will.

U.S. Constitution, Article I, Section 8:
The Congress shall have Power .. To promote the Progress of Science
and the useful Arts, by securing for limited Times to Authors and
Inventors the exclusive Right to their respective Writings and

[ Apologies for US-isms - the foundations and motivations for such
laws are probably similar in other countries. ]

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