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Comment by sfblah | Hacker News Reader

How does this work when the "violation" is in open-source software? Wouldn't the issue be with products which incorporate the patented technology? I thought part of the point of the patent process was to encourage inventors to disclose how their inventions work so, while the inventors do profit from them, innovation could continue without everyone hiding secret formulas from each other.

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Open source isn’t a “get out of jail free card” for patent violations. Despite how many of us here feel about patents, a patent is for a temporary monopoly in exchange for not “hiding secret formulas”. Open source/freeware/etc. or not, patent infringement is illegal. Independent discoveries (like this) do throw a wrench into that, but IANAL.

Sure, but isn't it the usage in a product that's illegal, not merely writing code that implements it in principal?

IANAL, so I can’t say. You could try using the “code is speech” argument like what encryption advocates in the 90s argued. It worked then, but I doubt it’d work for this.

IANAL, and neither is wikipedia, but "Indirect Infringement" would be my concern.

https://en.wikipedia.org/wiki/Patent_infringement_under_Unit...

I'm concerned how a 2009 work (crunch) could infringe on a 2010 patent (#20110115806), which was before the US switched from first-to-invent to first-to-file.

Although Richard wrote crunch in 2009, he didn't publish it until 2011. Therefore, it doesn't serve as prior art to invalidate the patent.

Richard didn't apply for a patent himself, so first-to-invent is not applicable either. If he had learned of Doug's patent application, and then made an application of his own, there would have been a legitimate dispute as to priority. Since Richard shopped the library around in 2009, he might have been able to prove that he conceived the invention first. However, Doug might then have argued that Richard had abandoned, suppressed, or concealed it. See this blog post from 2005 discussing a similar hypothetical:

https://www.irmi.com/articles/expert-commentary/the-dangers-...

The technique employed by crunch was effectively a trade secret until its open source release. It's entirely possible that the patent is invalid for other reasons, but my layman's understanding of patent law is that because Richard didn't publish or patent in time, crunch can in fact infringe Doug's patent.

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