European Free Software / US patent issue

Bernhard Reiter bernhard at
Thu Jan 16 18:53:28 UTC 2003

On Thu, Jan 16, 2003 at 07:14:51PM +0100, Benja Fallenstein wrote:
> I'm a developer on a FS project [] which is partially 
> based on technology that is patented in the US. We're currently trying 
> to work out how to deal with this in order to remain Free, i.e. whether 
> we can get a license from the patent holder (aking to the FSF-approved 
> Open Patent License 2.0), 

AFAIK the Open Patent License is not really fully "approved" by the FSF.
You certainly refer to the rtlinux patent and the agreement
between the FSF and FSMlabs to license their patent under the Open
Patent License.

The agreement was made in this special case, because the
controversy and software was already there. It does not necessarily mean
that the FSF will prefer agreements like this and the Open Patent
License in other cases.

Even when a patent is license under the Open Patent License
many problems remain for the Free Software community.
One is the right to learn, you cannot examine a software and use
the knowledge you've gained.

> whether we have to switch to a different, 
> non-patented technology (which would severely impact the character of 
> our project), etc.

This is the best option you have.
For the long term software patents have to be attacked 
on the political level.

Raise your voice to your political representatives
that your research is in danger by this patent legislation.

> One thing that has been brought up is that the patent is registered in 
> the US, not, as far as we know, the EU, and that software patents are 
> officially still-- hum, how to say this-- 'somewhat illegal' here. 

Well some still exist.

> So, it seems like there could be a possibility of restricting
> access to non-US countries, as provided for by the LGPL clause 12
> (don't know right off my head which clause it is in the GPL). This
> is obviously not desirable, but may be an option if we cannot get
> a patent license. 

It is an option and might be even better than
an agreement including the Open Patent License,
because such an agreement always comes with extra costs.

On the political side it also puts more pressure on
the US for allowing software patents, if Europe has an advantage here.

> However, I do not know enough about patent law to have a clue whether or 
> not US patents are enforcible in Europe and whether the patent holder 
> could file for a EU patent in addition to the US patent or anything. 

They could, but it is an independent process,
they cannot rely on the US patent itself.
US patents are not directly enforcable in Europe to my knowledge.

> Also I have no idea whether or not we can continue to use the Savannah 
> services for our project if we're forced to add a geographical 
> limitation to our code's license.

Patents often only cover actual commercial use.
But some legislation will consider a lawsuite 
for helping to violate a patent.

If you add the explicit warning that the code 
cannot be use in the US because of the patent,
it should be fine to host it on savannah, because
the could would be easy to access anyware in the world anyway.

> I need some advice here-- not legal advice, obviously, which I guess you 
> cannot give, but informed opinions. Any comments are appreciated. I hope 
> that this can be considered more or less on-topic; if anybody has ideas 
> for a better forum to ask about this, please tell me.

It is on topic.
If you want better information on the legal side of software patents
in Europe, you have to go to the ffii or eurolinux lists.


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