On Mon, May 31, 2004 at 10:54:13PM +0100, Andrew Suffield wrote: > Phrase the proposed restriction in a way that is not specific to > patents. Then construct a scenario where you apply it to copyright. Is > it still an acceptable restriction?
I think this would be a mistake. Patents are more different from copyrights than use is from copying. With copyrights, there is [fairly clear] copyright holder. This is the author(s) or someone who has been assigned copyright. With patents, it's not clear what patents are relevant, who the patent holders are, nor whether the patents are valid. Additionally, most copyrights are valid -- we can safely assume that if there is no copyright notice on something that we can't redistribute it, and if there is we have a reasonable certainty that it's correct. Most patents are not valid -- we can't assume that the absense of a patent license means that we can't distribute something and we can't assume that the presence of patent information means that the patent is valid (in the U.S., when a patent issue is taken to court, it's assumed that the patent is valid and it's the responsibility of the defendant to prove otherwise, but it's still the case that most patents issued on software are issued without any consideration of what's obvious nor of what prior art exists). Historically, that's meant that we've been careful about copyrights, and that we've largely ignored patents except where someone has been active in claiming that a patent applies to some class of software. And that's another thing that's different about patents -- a patent typically covers many programs, including those which haven't been written yet, and including those which are written in complete ignorance of the patent. -- Raul