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A Word of Advice on Andrew Tridgell's Patent Defence

You might already have seen this:

Well, take it with large chunks of salt, not just a grain or two.

Like many, I admire Andrew Tridgell's work, most importantly his achievements on Samba. His presentation nicely illustrates some of the fallacies when programmers, lawyers and patent attorneys try to communicate.

That being said, this text also contains such fundamental errors to make it not only misleading but dangerous to Free Software.

Let me quickly recapitulate Andrew's main message to Free Software developers here:

0. Read patents
1. You don't have to care about dependent claims
2. If you're not using ALL elements of an independent claim you can't be infringing the claim in question.
3. Therefore, you're on the safe side. If we manage to do check claim elements on a larger "open source" scale, Free Software will live happily ever after and software patents won't be a big problem anymore.

Now I'm aware that Andrew is from Australia and that's how things might work there - I simply don't know.

However, regarding those countries where software patents are currently the the biggest danger, i.e. the U.S.A., the European Union and Japan, Andrew's assumptions are plain *wrong*.

For starters, please check out the Wikipedia entry on the doctrine of equivalents:

Like the U.S. Supreme Court said in GRAVER MFG. CO. v. LINDE CO., 339 U.S. 605 (1950):

"One who seeks to pirate an invention, like one who seeks to pirate a copyrighted book or play, may be expected to introduce minor variations to conceal and shelter the piracy. Outright and forthright duplication is a dull and very rare type of infringement. To prohibit no other would place the inventor at the mercy of verbalism and would be subordinating substance to form. It would deprive him of the benefit of his invention and would foster concealment rather than disclosure of inventions, which is one of the primary purposes of the patent system."

What this all boils down to is that you indeed have to read (and understand) all claims, consider what the patented invention does as a whole and evaluate if your solution achieves the same.

If it does, you are very likely infringing even if your solution does not use all claim elements. That's one of the main reasons why software patents are so dangerous and happily coexisting with them is a much more complex issue than Andrew's talk suggests.

Reposted byswpatpatents

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