Xref: utzoo misc.legal:26201 comp.sources.d:6965 gnu.misc.discuss:3119
Path: utzoo!utgpu!news-server.csri.toronto.edu!rpi!usc!elroy.jpl.nasa.gov!ncar!csn!hellgate.utah.edu!basset.utah.edu!hollaar
From: hollaar%basset.utah.edu@cs.utah.edu (Lee Hollaar)
Newsgroups: misc.legal,comp.sources.d,gnu.misc.discuss
Subject: Re: a real-life patent issue. [it is not safe out there]
Summary: You need to read the claims
Message-ID: <1991May17.144807.29903@hellgate.utah.edu>
Date: 17 May 91 20:48:07 GMT
References: <22734@yunexus.YorkU.CA>
Sender: hollaar@cs.utah.edu
Followup-To: misc.legal,gnu.misc.discuss,comp.sources.d,sci.crypt
Organization: University of Utah CS Dept
Lines: 34

>I hate to bring up the old RSA software patent question again, but
>this time we have a real life situation.
>As you can see from the message below, RSA is unhappy with my releasing
>a public key encryption program.  
>I claim that the algorithm here does not closely resemble RSA and
>therefore should not infringe upon the patent(s).  They claim otherwise.

To know whether something infringes a patent, you have to read the claims
in the patent.  The claims can be much broader than the invention that the
patent is to protect.  This is particularly true for pioneering inventions.

When reading the claims, you see if each element of the invention recited
in the claim is present in your invention.  If all elements are present,
then you infringe the patent.  If just one element of the claim is not
present, then there is no infringement.  If your invention contains things
not present in the patent claim, and the claim describes the invention as
"comprising" the elements, then you still infringe.  If you have an element
that is similar to, but not exactly like, one in the claim, you may still
be infringing under the "doctrine of equivalence."

The penalties for infringement can be stiff, and they are even worse for
intentional infringement (which would probably be the case here because of
the warning letter).  The Court of Appeals for the Federal Circuit, which
handles all patent infringement appeals, has made it almost impossible to
be an innocent infringer of a valid patent that you know exists.  And it's
not just the person who distributes the program, but anybody who makes, uses,
or sells the patented invention within the United States.

Don't depend on information from people on the net who might not understand
patent law.  See a good patent attorney or patent agent.

			Lee Hollaar
			Professor of Computer Science
			Registered Patent Agent