Links about today's MS-EC deal

Ciaran O'Riordan ciaran at
Tue Oct 23 08:27:21 UTC 2007

Hannes Hauswedell <hannes at> writes:
> First of all, how can the "deal" include a patent grant (or patent license) if 
> there are no such things as software patents in the EU?

The problem is that patents partly exist in the EU.  The power of patent
governance is split between a legislature, an executive, and a judiciary.

The legislature (the European Patent Convention) says that software ideas
are not patentable.

The executive (the European Patent Office) ignores this and approves
software patent applications.

The judiciary (the national courts) usually declares the EPO's software
patents to be invalid whenever there is a court case.

So, for the most part, Europeans are safe from software patents.  There are
very few court cases because the patent holders are afraid their patents
will be invalidated.

In 2005, after years of work, we blocked an attempt to change the
legislation.  That change would have made software patents valid.

Today, there are attempts being made, such as the EPLA, to remove the
national courts from patent governance.  The people behind the EPLA want to
replace the national courts with a centralised EU court whose judges will be
selected and continually reviewed by the EPO.

> Everyone worlwide can download this software from my homepage and the GPL 
> tells them that there are no patents (or that I grant everyone rights to do 
> whatever) - which is completely right from my point of view, BUT still 
> someone in the US holds a patent on something done with my software.
> Now where is the flaw?

The GPL can say that when *you* distribute the software, *you* agree not to
use your patents sue the recipients, but if someone else has a patent, they
could still use their patent to sue the recipients.

If their patent was granted in the US, they can sue people in the US.  If
there patent was granted in Germany, they can sue people in Germany.

> Does the GPL legally prevent me from releasing the code at all? (that would be 
> me violating the law in my home country)
> Or am I not allowed to distribute this piece of software internationally? 
> (that would be me violating American law by releasing software on a German 
> web-site)
> Or are US-Citizins not allowed to download the software? (that would be 
> Americans not able to exercise the rights they are granted by the GPL)

Unfortunately, the patent system leaves us in a very unclear situation.

If a patent exists, that just means that some government employee thinks it
looks valid and has rubber stamped it, however, they are paid for each
patent they approve, and they only have a few hours per patent.  Combine
this with that patent applications are purposely written as vaguely as
possible, and you end up with a lot of invalid patents.

So if a patent exists, that doesn't mean the patent is valid.  And if
someone says you're using their patented idea, they might be wrong - a judge
might disagree.

> The Groklaw-article says that Technologies that are patented (in the US) may 
> not be implemented in GPL-Code because the GPL prohibits these "patent 
> deals".
> If this is the case, how can this decision be acceptable?

I haven't read the deal, so someone else'll have to answer this bit.

CiarĂ¡n O'Riordan __________________ \ Support Free Software and GNU/Linux _________ \     Join FSFE's Fellowship: \

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