Software Patents (or, is The GIMP immoral?)

[Daniel3D]

Greetings, all!

The question is: Can I morally use computer software that is known to be infringing on a software patent?

Here’s my issue: I once used “The GIMP,” which is a free alternative to Adobe Photoshop. Several years ago, Adobe sued Macromedia (now part of Adobe) for infringing on one of Adobe’s patents. If anyone recalls, this was the issue with Dreamweaver using tabbed palettes. About this time, I stopped using “The GIMP” because it (and quite a few other programs) also infringe on the patent in question.

Now, after studying some more, my interpretation of the law is that a patent just gives the holder power to wipe out his competition - it doesn’t make infringing products illegal.

So, unless Adobe decides to bring out the big guns and go after every company using tabbed palettes, I’m assuming they’re safe.

I’m also assuming that it is legal and moral for me to use, say, “The GIMP.”

Any comments? This is an issue that really bugs me, since tons of software infringes on various patents. If I do a search on uspto.gov for “Adobe”, I wind up with over 5,000 patents.

 

[CuriousInIL]

It depends upon how the earlier case was resolved. Was their an injunction against further use or did the patent owner get paid effectively making the previously infringing software now licensed and legitimate.

I doubt that “tons” of software infringes. Most companies are good at notifying infringers and the public of infringement and then litigating or settling the matter.

Infringing products are not “illegal” but cases can be resolved by injunctions against further use (and/or orders of destruction) and if that is the case, then the moral path is to conform to the civil law.

A patent does not give the power to wipe out legitimate competition, it protects inventors and the inventive process–something that is and was important enough for our US forefathers to indicate that Congress has the power
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.
Art. 1, Sec. 8

 

[Daniel3D]

Thanks for the reply!

This is a general question - I’m using the specific case just as a concrete example of the situation. In this case, back in 2002, Adobe won against Macromedia.

It’s this paragraph which sums up my current justification for using software like The GIMP:

The right conferred by the patent grant is, in the language of the statute and of the grant itself, “the right to exclude others from making, using, offering for sale, or selling” the invention in the United States or “importing” the invention into the United States. What is granted is not the right to make, use, offer for sale, sell or import, but the right to exclude others from making, using, offering for sale, selling or importing the invention. Once a patent is issued, the patentee must enforce the patent without aid of the USPTO.

uspto.gov/web/offices/pac/doc/general/index.html#patent

Basically, I’m now thinking that I’m morally okay, as long as a PatentHolder Inc. doesn’t go after InfringingProduct Co.

 

[markomalley]

IMHO, unless you are a GIMP developer, you are not infringing on Adobe’s Intellectual Property. The key is that you are not trying to pass their IP as your own idea by using the product in question nor is the product in question attempting to market itself as an Adobe product (as if it were a counterfeit item).

Now, Adobe might have a course of action against the developers of this product, but until a judgement is given mandating that all existing copies of the infringing software be recalled, I really don’ t think you have any cause for concern.

Having said that, I am not a Patent Attorney…

 

[Daniel_Marsh]

Adobe Systems Inc. and Macromedia Inc. jointly announced today that they have reached a settlement agreement on all litigation between the two companies. While terms of the settlement were not disclosed, “customers with products from either Adobe or Macromedia will not be affected,” the companies said in a statement.

macworld.com/article/8577/2002/07/lawsuit.html

Based on that report, I say go ahead and use the software.

 

[Ray_Scheel]

The question is: Can I morally use computer software that is known to be infringing on a software patent?

~ I believe you’ve already worked this out, but there are two things to consider here.

First, unless the presumed patent holder is known to be in litigation against the potential infringer, there isn’t even a strong presumption of infringement.

Second, the USTPO has issued many software patents for applications that are ultimately not enforceable, and has only recently realized the eror if its ways and stopped handing them pout like candy. Doing the same thing that has always been done with a new tool is not something that can be patented; the most that could be done is putting a copyright on your particular set of instructions on how. Using a tabbed information display is older than the paper Rolodex approach; there is very clear “prior art” there.