I'll jump in here, not to defend or explain the patent system (heaven forfend I even try that on this list!), but to point out that 35 U.S.C. sect. 273 offers some potential relief in the situation you describe. It's intended to provide a defense to people who were commercially using a patented business method more than a year prior to the patent's filing. It's a confusing and complicated law and has not seen wide use (yet).
Laura A. Majerus Fenwick & West LLP 2 Palo Alto Square Palo Alto, CA 94306 Phone: 650-858-7152 Fax: 650-494-1417 http://www.fenwick.com > -----Original Message----- > From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]] > Sent: Tuesday, October 30, 2001 6:25 PM > Cc: [EMAIL PROTECTED] > Subject: Re: Intel's proposed BSD + Patent License > > > On Tue, 30 October 2001, Russell Nelson wrote: > > > Essentially, we are all of us completely and totally screwed by the > > patent system. If I invent something that you have put into your > > (unpublished -- at least as far as the patent system is concerned) > > code for decades, and patent it, I 0WN J00. Doesn't matter > if you're > > IBM and I'm Joe Blow, or vice-versa even. > > > given: > > http://www.nolo.com/encyclopedia/faqs/pts/pct3.html#FAQ-294 > > =Patents must be novel (that is, it must be different from all > =previous inventions in some important way). > = > =Patents must be nonobvious (a surprising and significant > development) > =to somebody who understands the technical field of the invention. > > I don't see how you could patent something that I've had in > code for decades. It's neither nonobvious nor novel. > > Granted, software patents can be a pain > (Some perl/tk widgets had to have functionality > ripped out because they supported a patented image format) > > and, IMHO, stupid (the "one-click" patent from days gone by) > > but has the scenario you described actually happened? > (i.e. decades old code getting patented out from under someone) > > Greg > > > > -- > license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3 > -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3