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Comment by bsimpson | Hacker News Reader

You're replying to a lawyer in the Open Source Program Office at Google:

https://www.pli.edu/Content/Faculty/Daniel_Berlin/_/N-4oZ1z1...

If there's anyone I'd expect to have a handle on open source law, it's him.

While I love reading DannyBee's opinions and am inclined to believe what he says, it's unfair to shoot down parent with an argument from authority; DannyBee did not actually cite any cases to highlight the precedent on implicit patent grants, which is exactly parent's point - it is very difficult to find publicly available information on this, aside from informal commentary.

Well the main thrust of his post (as I understood it), was contained within the first sentence:

> I couldn't easily find a credible patent lawyer who has written publicly about this

Since DannyBee is quite possibly a "credible patent lawyer", then the above poster is getting what he asked for.

Yeah I think this is fair. Although it might have helped to preface with that. Nonetheless, a small amount of egg on my face.

How much do you want and in what area? Googling "federal circuit implicit patent grant" will find you tons of free sources, as will "Federal circuit exhaustion".

Like i said, it just doesn't say "software" on it. But it's not like this is fresh snow. People have been dealing with this in every facet of thing for years.

There's plenty of caselaw even on things like "person gives away free samples, later tries to sue for patent infringement" or "person gives gift, later tries to sue for patent infringement and "person licenses !software, later tries to sue for patent infringement".

If you have access to lexis or something, it's all neatly organized too :)

If you don't, here's a reasonable case to start on exhaustion:

http://www.cafc.uscourts.gov/sites/default/files/opinions-or...

Exhaustion of patent rights applies even when it's given away free: "In summary, we hold that patent exhaustion principles apply equally to all authorized transfers of title in property, regardless of whether the particular transfer at issue constituted a gift or a sale. "

Here's an older article with a ton of cites: https://www.finnegan.com/en/insights/the-u-s-supreme-court-c...

Note: All the parts in the article that talk about restricting use post-sale are now invalid. The supreme court held, last year, that post-sale restrictions cannot be imposed, exhaustion still occurs, too bad, so sad. (http://www.ipwatchdog.com/wp-content/uploads/2017/05/Supreme...)

Now remember, it doesn't matter if it was sold sold or given away,, i just gave you precedent saying it applies just as well to a gift.

So those are out the window too.

That's just on the exhaustion side, even without finding an implied license (which are closely related).

There really is just no precedent to hang your hat on that says "yeah, you can give people stuff, tell them they can use it, and then sue them for patent infringement".

It doesn't matter if it's an implied grant, exhaustion, you name it. There is just no case out there that says "yeah, that's okay".

Uhh..wow, thank you. I didn't actually expect you to do the work for me(not your job/it's why I said I believed you in the initial post), I was just making a point that others might be skeptical.

I guess I was googling for the wrong term - implicit patent license leads to a very different set of speculative answers compared to "implied patent grant" and "federal circuit exhaustion".

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