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SubjectRe: Article: IBM wants to "clean up the license" of Linux
On Mon, 21 Dec 1998, Michael Shields wrote:

> > On 21 Dec 1998, Michael Shields wrote:
> >
> > > In article <19981220154531.A17409@hazel>,
> > > Raul Miller <> wrote:
> > > > Wait till products have been out for a while and only
> > > > sue the big-money makers.
> > >
> > > It doesn't work like that; you need to protect your patent against all
> > > infringers, or you can lose it.
> > > --
> > > Shields.
> > >
> >
> > No. That's a Copyright.
> I don't know what country you are referring to, but most of this
> thread has been focused on the US. In Berne Convention countries for
> the last 20 years, a copyright is yours outright even without putting
> a notice on your work. A patent must be defended in the US to remain
> valid, and it cannot be defended selectively.

> Don't take my word for it; read the FAQs.
> (section 5)
> --

I don't care what some web-page says. I am in the US, I have many
patents issued, and I do this for living. There may be some "trick" in
the word "defended". As mentioned in my first post on this subject,
patents are seldom contested as invalid to the Patent Office. This is
because, if a patent is found invalid by the Patent Office, then everyone
can use the invention because it has already been fully disclosed.

Instead, companies usually claim that they already "invented"
the inventon. They don't file such a claim with the USPO because
they would risk losing exclusive use if the patent was declared
invalid. Instead, they contest the validity of the patent with
the inventor or his/her assigns. This allows them to cross-license
or otherwise use the invention that they claim to have invented.

Certainly if a claiment causes the USPO to reconsider a patent
due to prior art, and if the inventor does not defend his/her
claim, the risk is great that the invention will be declared
invalid. Since the patent has already been disclosed, it is
now "prior art".

I'm sure there are Patent Lawyers who read this list who could
further clarify if necessary.

Dick Johnson
Penguin : Linux version 2.1.131 on an i686 machine (400.59 BogoMips).
Warning : It's hard to remain at the trailing edge of technology.

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