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Infringement is unavoidable and clearance is impossible

Revision as of 14:06, 2 December 2009 by Mhkay (talk | contribs)

Avoiding software patents is difficult or impossible.

Even a company with a lot of funding and a large legal team (who who supports of software patents), namely Microsoft, cannot avoid patent infringement. See: Microsoft#Microsoft's patent infringements.

Searching for patents in order to avoid infringement is in practice impossible, partly because of the sheer number of them, and partly because there is no standardization of the (necessarily abstract) vocabulary that is used. A system in which "components" send "messages" to each other can be technically identical to one in which "agents" transmit "documents".

See for example A tale of two patents:

In an environment like today's technology industry, "There's a high likelihood that people are applying for patents, these patents are being granted, and there's a high potential for overlap," said David Bohrer, a partner in the IP litigation group of Dechert LLP. "It's very difficult both for the U.S. government examiner and for a potential infringer to discover [relevant patents]."

It doesn't help that the language in which software patents is written is incomprehensible even to a skilled professional software engineer. Where else does one ever come across a "plurality"? And what exactly does it mean, in programmers' language: zero or more, one or more, or two or more?

Not only is infringement unavoidable, it is also theoretically undecidable. In computer science there is no objective way of deciding whether two programs are equivalent, and therefore whether one program violates a claim made on behalf of the other.

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