Michael K. Edwards wrote: > On 7/19/05, Arnoud Engelfriet <[EMAIL PROTECTED]> wrote: > > That's basically how patent law works in every area. You can > > publish the knowledge but not apply the knowledge to make, use > > or sell a working device or actual product. And a book that > > humans can read is not a product in patent law. > > Still a bogus distinction. If the book says, "scan me and use me as > an implementation, screw the patent holder", I see no reason which it > wouldn't be every bit as infringing as a machine sold to end users in > build-it-yourself kit form.
Don't confuse inducement or contributory infringement with direct infringement. You can't claim "a book containing instructions that when loaded into a computer execute the method of claim 1" so there cannot be direct infringement by selling such a book. There are many people who come up with tricks like build-it-yourself kits, omitting a small element and so on. That's why the law also recognizes contributory infringement and penalties for inducing others to infringe. But those concepts are based on a different principle. > > Right, although there's lots of legal concepts like contributory > > or vicarious infringement that could come into play. But I don't > > see how distributing a .c file can be held a direct infringement > > of a patent on a "computer equipped with code for performing X". > > AFAICT this is not correct under your law or ours; statutes and > rulings that protect "staples of commerce" and components with > substantial non-infringing uses would not protect a "just add water > (solder, computer)" kit. Like I said, that wouldn't be _direct_ infringement. > Whether this goes by the name of > "contributory" or "vicarious" instead of "direct" infringement makes > little or no difference. For contributory infringement you need additional evidence. Contributory infringement is knowingly selling or supplying an item for which the only use is in connection with a patented invention. If you had a good faith belief the item had non-infringing uses, then you're not contributing to infringement. Also the penalties tend to be different. So I do think there is a difference. > > The European standard is that the claim must cover a piece of > > technology: a device or method that exhibits a "technical effect". > > And no, I don't have a definition for "technical". > > In the US, it's part of what the courts have read into 35 USC 101's > "new and useful process, machine, manufacture, or composition of > matter". Even a "process" has to be "useful" for a particular > industrial or commercial purpose in order to be patentable. Again, > see In re Alappat. Right, although your "useful" is generally broader than our "technical". State Street Bank's patent was "useful" but not "technical". > > The problem is exactly the same: European patent law does not > > exclude patents on mathematical methods, but only on mathematical > > methods _as such_. Apparently this is not the same thing for the > > people who wrote that law. They may have been wrong, but if this > > is the law, then that's what we have to work with. > > Can you point me to an appellate decision that speaks to this > distinction, even if that isn't dispositive under your system? The law says so: articles 52(2) and (3) EPC. http://www.european-patent-office.org/legal/epc/e/ar52.html The EPO's Board of Appeals has issued several decisions that discuss this article: http://legal.european-patent-office.org/dg3/pdf/t971173ex1.pdf (see page 12 of the PDF, sections 4 & 5) http://legal.european-patent-office.org/dg3/pdf/t950931eu1.pdf (see page 12, similar reasoning for a business method) The Germans issued a somewhat similar decision in 2000: http://swpat.ffii.org/papers/bgh-sprach00/index.en.html Arnoud -- Arnoud Engelfriet, Dutch & European patent attorney - Speaking only for myself Patents, copyright and IPR explained for techies: http://www.iusmentis.com/ -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of "unsubscribe". Trouble? Contact [EMAIL PROTECTED]