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0 pointsAnthonyMouse12y ago0 comments

> To infringe a patent, you must make, use or sell a product incorporating the invention. A patent by itself does none of those and hence cannot infringe anything.

How are you intending to distinguish program source code in an interpreted language incorporated into the body of a patent specification from a software product consisting entirely of that same code?

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throwawaykf0512y ago· 2 in thread

A patent is essentially a document with just two purposes: 1) instructing a practitioner how to reconstruct the claimed invention, and 2) defining the legal scope of ownership for the claimed invention. By itself, it does nothing else, and thus does not constitute making, using, or selling.

Now if somebody other than the patent-holder takes the source, compiles it and uses and / or distributes it without license, they are infringing. Note that by taking and compiling the source, they are essentially just fulfilling the first intended purpose of the patent: instruction. Where they run afoul is the second purpose.

AnthonyMouseOP12y ago

It seems like the distinction you're trying to draw is between source code and a compiled program, but that doesn't apply to interpreted languages. There is no compiled program, the source code is the program. And you can effectively convert any compiled language into an interpreted language just by associating its file extension with a two line shell script that invokes the compiler and executes the output. Trying to differentiate one from the other on that basis is frivolous.

So I still don't see how you're trying to refute the conclusion that a software patent containing code covered by its claims would infringe itself. You couldn't reproduce or distribute the patent without reproducing or distributing the program.

Obviously a patent sitting on a desk doesn't self-execute, but neither does a program on a disk sitting on the same desk. I see no relevant difference between one and the other any more than there is between a USB stick and a CD.

throwawaykf0512y ago

Compiled versus interpreted has no bearing on this. The patent and the source code in it exists only to instruct, and by itself the invention claimed is neither made, sold or used and has no commercial effect. Unless an unlicensed third party does anything with it, it is not being made, used or sold, and so cannot infringe. Software that is lying unused and unexecuted on some computer readable media is still infringing if it was created without license because the act of copying code on to or distributing that media counts as "making" or "selling". I I cannot imagine under what interpretation a patent itself could count as an "unlicensed third party".

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