[A2k] Software Patent and Its Scope Online

Erik Josefsson erik.hjalmar.josefsson at gmail.com
Sat Oct 27 06:24:25 PDT 2012

On 24/10/12 22:53, Heesob Nam wrote:
> In some jurisdictions including France, Germany and UK, patent can
> prohibit an act of offering or even keeping or possession of a
> patented product. Then when a patent right is extended to a computer
> program itself (e.g., by defining the program as a product in Patent
> Act), anyone transmits online the program becomes an infringer (by
> offering). This is the case even when he or she does not sell the
> program. And anyone who stores the program in PC is liable as he keeps
> or possesses it. Further, ISPs storing and transmitting the program
> upon request of users are liable of "direct" infringement.
> If this interpretation is correct, the freedom to distribute free
> software is to be seriously undermined.
> Let me know if there is any court or administrative decisions contrary
> to my interpretation or concerns.

Not sure amendments administered and voted in the EP counts as
"decisions", but the JURI secretariat concluded exactly what you say
when they made a voting list which put program claims in opposition to
an amendment saying that publication of information can never be a
patent infringement. Either one had to go. They were made "caduc".

Here's an FFII analysis from 2003:

    "Patent Claims to "computer program, characterised by that upon
    loading it into memory [ some process ] is executed", are called
    "program claims", "Beauregard claims", "In-re-Lowry-Claims",
    "program product claims", "text claims" or "information claims".
    Patents which contain these claims are sometimes called "text
    patents" or "information patents". Such patents no longer monopolise
    a physical object but a description of such an object. Whether this
    should be allowed is one of the controversial questions in the
    struggle about the proposed EU Software Patent Directive. We try to
    explain how this debate emerged and what is really at stake."

The Swedish case I know is BlaceEnc. It was never litigated, but the
programmer (Tord Jansson) was asked by some patentholder (I think it was
Fraunhofer) to remove the source code from the internet.

As far as I remember, BladeEnc was written from scratch based on some
ISO standards specifications. I don't know if Tord was threatened with
litigation for direct or indirect patent infringement, but the result
was that he withdrew from his own project.

Today I guess he would go down under "inducing infringement".

Best regards.


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