From bloom-picayune.mit.edu!mintaka.lcs.mit.edu!olivea!apple!netcomsv!rcain Sat Jan 25 03:31:02 EST 1992 Article: 7232 of sci.crypt Path: bloom-picayune.mit.edu!mintaka.lcs.mit.edu!olivea!apple!netcomsv!rcain From: rcain@netcom.COM (Robert Cain) Newsgroups: sci.crypt Subject: Re: Pretty Good (tm) Privacy Message-ID: <1992Jan24.052740.21913rcain@netcom.COM> Date: 24 Jan 92 05:27:40 GMT References: Organization: Netcom - Online Communication Services (408 241-9760 guest) Lines: 109 I was requested to take my legal questions to comp.patents regarding usage of patented devices. Here are some case extracts thanks to Dan Bernstein: > From: brnstnd@KRAMDEN.ACF.NYU.EDU (Dan Bernstein) > Newsgroups: comp.patents > Subject: Re: Personal Use > Message-ID: <9201202057.AA07621@KRAMDEN.ACF.NYU.EDU> > Date: 20 Jan 92 20:57:41 GMT > Sender: mflll@uxa.ecn.bgu.edu (Dr. Laurence Leff) > Organization: IR > Lines: 76 > Approved: patents@cs.su.oz.au > Status: R > Temporary-Moderator: mflll1@uxa.ecn.bgu.edu > > In article <1992Jan19.050830.28936rcain@netcom.COM> you write: > > Is it forbidden by patent law to build a patented device in one's back > > yard for ones own use? > > Yes. Special exceptions aside, if you make, use, or sell a patented > invention, you are infringing the patent. The most important broad class > of exceptions is for what's usually called experimental use. I advise > you to take the following paragraph with a grain of salt: > > > > There was a law magazine article on that question. Some ancient > > > precedents at the court of appeals level do say that one can build > > > a patented device strictly to satisfy curiosity, etc. However, it > > > is not clear whether they would hold up, or whether they would be > > > considered pursuasive in other jurisdictions. > > Here's some real case law. It's neither ancient nor forgotten. It forms > a rather strong precedent which, by comity, other courts must follow. > Should I note that one of the defendants was IBM? (Quotes courtesy of > West's USCA.) > > ``Experimental use does not infringe a patent.'' Chesterfield v. U.S., > 1958, 159 F.Supp. 371, 141 Ct.Cl. 838. > > ``An experimental use for philosophical or amusement purposes is not an > `infringement', but an experiment made commercially may be an > infringement.'' Northill Co. v. Danforth, D.C.Cal. 1943, 51 F.Supp. 928. > > ``Experimental use is not public use if it is conducted in good faith > for purposes of testing invention and for no other purpose not naturally > incidental to experimental purpose.'' Norfin, Inc. v. International > Business Mach. Corp., D.C.Colo. 1978, 453 F.Supp. 1072, affirmed 625 > F.2d 357. > > ``Neither use of patented machine for experiments for sole purpose of > gratifying philosophical taste or curiosity or for instruction and > amusement nor construction of infringing device purely for experimental > purposes constitute `actionable infringement'.'' Kaz Mfg. Co. v. > Chesebrough-Pond's Inc., D.C.N.Y. 1962, 211 F.Supp. 815. > > ``Use of patented machine without authority from patentee for > experiments for sole purpose of gratifying philosophical taste or > curiosity or for instruction and amusement does not constitute > infringing use.'' Ruth v. Stearns-Roger Mfg. Co., D.C.Colo. 1935, 13 > F.Supp. 697. > > ``Experimental testing by defendant of infringing apparatus for a brief > period before going into commercial production, none of products having > been commercially sold, did not constitute infringement.'' Akro Agate > Co. v. Master Marble Co., D.C.W.Va. 1937, 18 F.Supp 305. > > The operative phrase (at least in California, New York, and Colorado :-)) > is ``for the sole purpose of gratifying philosophical taste or > curiosity, or for instruction and amusement.'' I find it extremely > difficult to believe that any court will ever rule such use to be > infringement. Mod? > > On the other hand, be aware that (e.g.) making your own RSA keys for > day-to-day communication, not just to satisfy philosophical curiosity, > is almost certainly infringement. ``Infringer of patent cannot escape on > ground of experimental use where it used machines to operate upon > customers' products in the ordinary course of business.'' Spour, Waldron > & Co. v. Bauer Bros. Co., D.C.Ohio 1938, 26 F.Supp. 162. > > ---Dan > > [Note from Temporary Moderator > > These appear, from the citations, to be District Court cases and thus > have no precedential value outside the immediate district (usually > part of a state). > > I will look up my references and followup. > > THANKS FOR AN EXCELLENT POST!!!! > > End of Note from Temporary Moderator] > So it seems that it is ok to use this stuff for experiment or entertainment or philosophy (!?) but according to Dan's unsupported final statement not to use in the course of business. For most of us this it means according to the body of law represented here it is just fine. By most of us I mean those that are using this net for entertainment and those for which it was originally formed, the research community. I am going to post further in comp.patents asking for substantiation of his last paragraph. There is further stuff over there regarding jurisdiction and it seems to have been consolidated under one federal court so regional issues don't apply. Bob -- Bob Cain rcain@netcom.com 408-358-2007 "Systems should be described as simply as possible, but no simpler." A. Einstein