All,
I am one of the core developers of an eCommerce solution (oscommerce) licensed under the GPL. I am based in germany and the project leader is also in germany. Two core team members are in USA.
It has been brought to our attention that there are some lawsuits in USA about patent infringement, filed by a company called PanIP (Pangea Intellectual Properties L.L.C).
You can read more about these patents here:
http://www.informationweek.com/story/IWK20021020S0002
http://www.youmaybenext.com/why.html
http://slashdot.org/article.pl?sid=02/10/22/015241&mode=thread&tid=1...
IANAL - but IMHO these patents are not valid under EU-jurisdiction - correct?
As our program fits quite exactly in these patents - must we be worried about possible legal actions against us or our core team members in USA?
Or does the GPL mak esure we will have no problems?
This patent stuff is getting more and more ridiculous.
IMHO there is prior art - Vend/Minivend was first published in 1995. But does that count in any way?
Jan Wildeboer
about patent infringement, filed by a company called PanIP (Pangea Intellectual Properties L.L.C).
One of those parasites that exist to suck money from people who do real things. At least they're honest in their naming :)
IANAL - but IMHO these patents are not valid under EU-jurisdiction - correct?
The EPO (european patent office) has granted a lot of patents that they couldn't grant according to current law (the EPC, european patent convention). So they might have a patent in europe as well. Or they may have filed it under a different name, to make your search harder.
In general, you can't tell if you're hit. You should feel safe, though, and try to explain your politicians what the problems are.
Or does the GPL mak esure we will have no problems?
Not at all. Patents are not about "for profit" use. They're an absolute monopoly on everything that falls under the claims. They may charge you per-copy (this prevents gpl distirbution), or they may just not license the patent at all.
This patent stuff is getting more and more ridiculous.
It has always been, since patents on abstract ideas have been accepted. It's only the number of blatant abuses that are increasing.
IMHO there is prior art - Vend/Minivend was first published in 1995. But does that count in any way?
No. When the patent office grants a patent, they have already inspected all available prior art and the patent can be enforced. If they didn't find the prior art it doesn't count. It's up to you to show (in court) that the patent is invalid. Did you guess why they started suing small companies?
/alessandro
Alessandro Rubini schrieb:
No. When the patent office grants a patent, they have already inspected all available prior art and the patent can be enforced.
Or better : They claim to have done that.
If they didn't find the prior art it doesn't count. It's up to you to show (in court) that the patent is invalid. Did you guess why they started suing small companies?
Well - if they start suing Intershop, SAP et al I wouldn't be worried. But as they attack small companies I AM worried. I would like to prepare myself a bit before our users or even we - the programmers - become a target on their radar screen.
Are there any patent lawyers around here that could shed some light on this? Or should I post the same question on the fsf.org mailing list?
Jan Wildeboer
Jan Wildeboer wrote:
As our program fits quite exactly in these patents - must we be worried about possible legal actions against us or our core team members in USA?
If your program is distributed on the US market, you may be in trouble. Even your US team members may be in trouble, as "making a patented invention" is forbidden without permission. However, the big question for them is whether you're worth the effort.
And I really really would like to stress that you should never say "our program exactly infringes those patents". If you get sued, and the opposing party finds this message in the public archive or something, you've basically lost the trial.
I don't know whether this company also holds European patents on e-commerce techniques. The EPO is more restrictive than the USPTO, and the legal situation differs from country to country. The German Supreme Court appears to be in favor of e-commerce patents (BGH Sprachanalyseeinrichtung, http://www.patentgesetz.de/kommentar/sprachanalyseeinrichtung.pdf)
Or does the GPL mak esure we will have no problems?
No, the GPL cannot help you here.
IMHO there is prior art - Vend/Minivend was first published in 1995. But does that count in any way?
Only if you start a lawsuit (or file a counterclaim when you get sued). You can then use that prior art to prove to the judge that the patent is invalid and should be annulled. But this may be difficult and most certainly is expensive. Don't do it without a (patent) lawyer.
You may also want to read http://www.iusmentis.com/patents/businessmethods/ and http://www.iusmentis.com/patents/obviousness/
Kind regards,
Arnoud Engelfriet
Arnoud Galactus Engelfriet schrieb:
If your program is distributed on the US market, you may be in trouble.
Our program is free software, I have no way to control or restrict the distribution.
Even your US team members may be in trouble, as "making a patented invention" is forbidden without permission. However, the big question for them is whether you're worth the effort.
They are aiming at small companies - I checked the fifty companies that they have sued - none of them uses our program. But it also seems that they do not sue the program makers - only the users. Hrmpf.
And I really really would like to stress that you should never say "our program exactly infringes those patents". If you get sued, and the opposing party finds this message in the public archive or something, you've basically lost the trial.
I didn't say that. Read those patents. They cover every program that uses text and images to sell a product. How can any eCommerce program not meet those specs? :-(
I guess we'll have to wait. Wonderful perspective. Two years of hard work by a big community can be easily turned down by ridiculous patents. Time for a revolution if you ask me ...
Jan Wildeboer
Jan Wildeboer wrote:
Arnoud Galactus Engelfriet schrieb:
If your program is distributed on the US market, you may be in trouble.
Our program is free software, I have no way to control or restrict the distribution.
Well, if you are not actively copying it to a U.S. website you should be less exposed. However, anyone in the USA who downloads a copy of your software can theoretically be sued.
Keep in mind, however, that the recipients of your software do not have the right to redistribute the software if a patent holder refuses to grant a royalty-free patent license for the software. See section 7 of the GPL.
Even your US team members may be in trouble, as "making a patented invention" is forbidden without permission. However, the big question for them is whether you're worth the effort.
They are aiming at small companies - I checked the fifty companies that they have sued - none of them uses our program. But it also seems that they do not sue the program makers - only the users. Hrmpf.
A nasty trick, since the users will complain to the manufacturer and force him to take out a license.
And I really really would like to stress that you should never say "our program exactly infringes those patents". If you get sued, and the opposing party finds this message in the public archive or something, you've basically lost the trial.
I didn't say that. Read those patents. They cover every program that uses text and images to sell a product. How can any eCommerce program not meet those specs? :-(
I haven't reviewed the patents, but even if the claims at first sight appear to be very broad, there can be many reasons why you still wouldn't infringe. For example, a term can be given a limited definition in the text. Or maybe the applicant said during prosecution that it is essential that feature X must be done so and so. In that case, even if feature X is given in the claim in a very broad way, you only infringe if you do it exactly so and so. Claim analysis is very difficult.
However, I was simply trying to say that you should never put in writing "my product infringes on this patent", even if to you this is the only possible conclusion. By your own admission you then know that you need to obtain a license. Since you didn't obtain a license, you are willfully infringing on somebody else's patent, and that may cost you a lot of money. I always tell people in my company to say "this patent looks very relevant to our product" and to leave the detailed analysis of infringement to the patent attorneys.
Arnoud