Thursday, September 16, 2004

Be Careful - Or Else: This article from ADTmag paints a rather bleak picture for the software patent community. It has the standard "sky-may-be-falling" lines, like:

Imagine a post-patent-apocalypse world where no new software can be written because even the most basic software patterns cannot be used without paying a massive fee. And even if you wanted to pay $1 million to incorporate a "For ... Next" loop in your program, you can't transfer the money -- the banks are closed because the software and business processes they rely on belong to someone else.
I think this is pretty over-the-top, and ignores many of the tenets of patent law. For example, I can build an engine comprising many patented sub-parts (spark-plugs, fuel-injections, etc.). However, unless I plan on manufacturing each of these parts myself, I simply approach the manufacturer of each part and purchase it. The patent rights are inherently bundled in my purchase (the "first-sale doctrine" allows a party to collect a royalty on the sale of a product only once), and once I legally possess the patented part, I can use it pretty much any way I want.

I recognize that software has some peculiarities that make it different from traditionally manufactured product, but these differences are not great enough to warrant such doomsday pronouncements.

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