Re: [tlug] GPL vs. paid version and ethics

["Stephen J. Turnbull" <stephen@example.com>]

Attila Kinali writes:

 > 1) Can i held be liable for violating patents in a country that i have
 > no relationship at all?

No relationship, no.  But if you bring your device into a country with
U.S.-like laws, then you can certainly be arrested for importing it,
and you might even lose in court if you so much as demonstrate it for
somebody else or otherwise get caught operating it.  If you produced
it on company time or use it on company equipment, your employer could
get hosed if they do business in such a country even though you never
go there (how they would prove it I don't know, of course, but suppose
they could).

 > 2) If i release the software as open source and do not sell/give it
 > away in a comercial context, can i be held liable for patent violation
 > at all (patents in europe are AFAIK a purely comercial construct that
 > explicitly excludes non-comercial use)

Definitely in the U.S. and the U.K.  In the U.S., you're not even
allowed to conduct R&D using patented technology without a license.
Of course, for software they'd need probable cause to get a warrant to
invade your privacy enough to catch you at performing the R&D, but in
principle you're infringing.  In the U.K. there's apparently a clause
that there has to be reason to believe you know you're infringing a
patent, but I find this provision hard to interpret, as on the face of
it any company could avoid all patent liability by simply keeping a
research lab full of employees who never read patents.

I couldn't find any references to "non-commercial" for existing
European law (well, to be honest I didn't go past Wikipedia or the
first page of results of a Google search).  However, I did find the
"Community patent" proposal, in which "[t]he rights conferred by the
Community patent do not extend to a number of areas detailed in the
proposal for a Regulation, such as acts done privately *and* for
non-commercial purposes."  (Emphasis mine.  See
http://europa.eu/legislation_summaries/internal_market/businesses/intellectual_property/l26056_en.htm.)

AFAICS, that means that acts that would otherwise infringe a patent
must be *both* "private" and "non-commercial" to be excluded from the
usual prohibition on unlicensed use of a patent.  If I am correct,
distribution as open source wouldn't be "private," and therefore would
be an infringement in any country with similar legal principles that
grants software patents.  (And R&D done for commercial purposes, eg,
to prove viability of a proposed product before paying for a license,
would also infringe.  Correction: I looked at the full text
eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52000PC0412:EN:HTML
and there's an explicit exclusion of R&D separate from the "private
and non-commercial" clause.)

Again if I am correct, I believe this is true for most community
members already, as the URL referenced above also says "At present, it
seems difficult to reach a final agreement on the dossier. The main
stumbling block is the issue of the translation of the claims in the
patent."  Ie, presumably the definition of "infringement" in the
proposal is not a problem for any country in the EU.

Sorry for going on at such length, but my biases should be evident so
I wanted to back up my opinions with some real facts. :-)

Steve