The Linux Kernel and Software Patents

batsman writes "The Linux VM system programmers are discussing the software patents that could block further development of important features. Alan Cox brings up several SGI patents covering the techniques they were considering, and Daniel Phillips has found some patents that affect features already present in Linux. Linus Torvalds thinks they should ignore these patents and pretend they don't exist until they cause troubles. How long before kernel developers are sued for patent infringement?"

Comments

Re:Kernel developers don't have to worry

[capologist]

From 35 USC 271:

(a) Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent.

Patents were not restricted to machines!

[Phronesis]

Patent law was made to protect inventions -- physical pieces of hardware.

Funny, the Constitution says (Art. I, Sect. 8)

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

There is nothing there that says the "discovery" needs to be a machine and not an algorithm.

Thomas Jefferson thought patents should be just for machines, but he was not the king of the U.S., and others thought differently. The Patent Act of 1793 states that the inventor of

any new and useful art, machine, manufacture, or composition of matter, or any new or useful improvement thereof

is entitled to a patent. Note that "arts," not just machines, are entitled to patents. The 1952 Patent Act revised this to read,

Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.

Again, not just machines, but processes were elegible according to the letter of the law to be patented. Algorithms and business plans seem to me to be processes and hence, are not automatically excluded from the wording of the historical patent laws.