[KDE-India] [OT] The Microsoft-Novell agreement

[USM Bish]

On Mon, Dec 04, 2006 at 08:56:46PM +0530, Aditya Godbole wrote:
> On 12/4/06, Mahesh T. Pai <paivakil at gmail.com> wrote:
> 
> > Here is how it goes.
> >
> > 1.  Going   by  the   constitution,  India  is   bound  by
> > international treaties.  Therefore, courts  will implement
> > domestic   (parliament  made)   law  in   accordance  with
> > international treaties.
> >
> > 2. India is a party to various treaties which oblige India
> > to enforce patents granted by foreign countries.
> >
> > 3. India is bound to enforce software patents even if they
> > are  granted in  foreign countries,  even if  India itself
> > does not grant s/w patents.
> >
> > Correct me if  I am wrong, and I am  no (longer a) lawyer,
> > so this is not legal advice.
> >
>
> I  think the  result  of the  above is  that  if some  other
> country  takes  legal  action  on  you  on  their  soil  for
> violating their patents, the  Indian government has to agree
> to that. I might be wrong though.
>

I don't know if  you guys have gone through the  link I put in
my  earlier  mail  on  Stallman's  views.  The  situation  and
interpretation of patents is quite well explained there.

Strictly  speaking, a  patent is  a state  issue, and  nothing
internationally agreed about  it. Every state is  free to have
its own  interpretations and  implementations. You  may notice
the variations in  its interpretations between the  US and the
EU in recent  times. The EU ruling in case  of the iPod-iTunes
Macintosh monopoly is just a case in point. Even within the EU
some countries  like the  UK are  rather itchy  about software
patents, and quite logically so. Russia, had no such laws till
1992, and even now, quite nascent, more goaded than because of
necessity.

A patent is a set of exclusive  rights granted by a state to a
patentee (the inventor or assignee) for a fixed period of time
in exchange  for the  regulated, public disclosure  of certain
details of a device, method,  process or composition of matter
(substance) (known  as an invention) which  is new, inventive,
and useful or industrially applicable.

The exclusive right granted to a patentee in most countries is
the right  to prevent  or exclude  others from  making, using,
selling, offering to sell or importing the claimed invention.

A patent is  NOT a copyright, regarding which  there is little
contentions. The gambit of patents is very ambiguous. A patent
is bought  and not a  natural endowment like a  copyright. Its
logic is so  full of holes, except for  assertions, nothing is
really applicable.

A hypothetical situation  is something  like this:  

I  use  my financial  power,  get  hold  of some  geniuses  on
contract, and make a product  called "bread". It is immaterial
that I  have used "wheat"  to make  it (which my  hired brainy
guys did not  invent). That does not come under  the gambit of
patents. I burn some more wads  of money for lawyers to get me
a "patent" for "bread" in a land called Timbuktoo. Ofcourse, I
also offer some coffers of gold to the Sultan of Timbaktoo for
the said  purpose. If  my patent is  granted, if  anybody else
makes "bread" in  Timbuktoo, using the same wheat,  even if he
uses his own methods and ovens,  that person still has to give
me money,  because the  Sultan of Timbuktoo  has given  me the
patent. This  would be applicable  for an arbitrary  number of
years (20 years by US  standards). The bottom-line here is the
authority of the Sultan of  Timbuktoo which effects the system
called patents. The current trends are for corporates all over
the world  to convince or  force all the Sultans  of Timbaktoo
and the like  to fall in line, for reasons  more economic than
anything to do with upliftment of science or society ... As of
now, I  would have to pay  every sultan, king and  maharaja in
all lands to have my "bread" earn me returns for nothing extra
in those  lands too. That  is inconvenient ! I  therefore work
out "international"  mechanisms, like the  WTO, to help  me in
this process.  But then the  mechanisms are in no  position to
force such an outcome ... that is where I get stuck. So I make
loud noises about how my patents  are violated by king of this
place and the rajah of that  place  ... there would still be a
lot of sympathisers for my cause, since  really  very few know
what the hullabaloo is all about !

Hope things  are clearer now.  Logically, the whole  gambit of
patents is rather murky ...  as progressive humans, we have no
need for such  pseudo-protective mechanisms, for proliferation
of corporate ends. Our goals are science and humanity.

Bish