Hacker News Reader

Comment by Palomides | Hacker News Reader

no, a patent is exclusive right to implement, you can't get around it by reverse engineering

the tradeoff is that it becomes free eventually, unlike trade secrets

Yes, but they're arguing in the letter that the work is _also_ disclosing information that would allow their competitors to know how DisplayLink works. You can't have it both ways.

A thing can be encumbered by both patents and trade secrets, can it not?

well technically, yes and no

if I patent a microwave and specify exactly how it works, that part can't be trade secret

BUT if my trade secret is on using ruby diamond for deluxe premium microwave lazor THAT isn't specified on the patent, well that be a trade secret

but trade secret CAN ONLY BE PUNISHED IF someone insider leaks the info -- not much can be done if some junk collector finds out about the ruby stuff

Right.

But lawyers are prone to using scary phrasing, even if that phrasing has no bite, and are free to write strongly-worded letters.

"I see that you've been publishing the privately-held, trade secret tomato processing technique I developed -- on the Internet! Now, tomato processors everywhere can see it! I'm really pissed! I demand that you stop doing this immediately! In fact, if you want a full enumeration of whar I really think about the terrible things you're doing, then I further demand that you pay me $25,000 for that effort!"

...it's got no bite, but it's a letter. It can be drafted and sent.

(It can also be ignored upon receipt.)

case in point: some youtuber recently reverse engineered the coca-cola formula

hmm but can they actually get the coca?

coca-cola's coca is the coca as in cocaine (literally)

so I heard DEA has some really strict controls on that coca producing facility (so it doesn't produce cocaine)

Coca isn't blanket-illegal. It's just very-heavily restricted in the States. (But not that restricted: My regular dentist is licensed to prescribe cocaine. At a federal level, it's less-restricted than the devil's lettuce is.)

Coca-Cola buys spent coca remains, after they've had the party powder components extracted from them. This product is not particularly restricted.

Trade secrets aren't an encumbrance if you discover them independently. Reverse engineering (for interop) is legal in the US. The only leg they have to stand on is patent infringement.

However reverse engineering, even for interop, doesn’t absolve you of EULA things you agreed to, which can include reverse engineering. And any such dispute can drag you into court for years and easily 10s of thousands of dollars, just to defend.

An EULA is not a valid contract.

well if someone picks up from junkyard or second-hand, I don't think EULA can even apply for them...

UNLESS the first buyer suddenly pops up and recites the EULA for them and have the agreement got right

Yeah, that statement clearly is making IP claims beyond patent infringement, they just didn't elaborate. They didn't say it's patent infringement because of that.

Merely reverse engineering for interoperability is not a violation of any type of IP in the US.

1. Reverse engineering for interoperability gives you a defense for copyright and trade secret claims in the US. It provides zero protection from patent claims. "reverse engineering a patent" doesn't even make any sense. Patents are public, there's nothing to reverse engineer. You could "reverse engineer a specfiic implementation of a patent", but the only thing you'd be accomplishing is just avoiding infringing on the parts of the implementation that are subject to copyright or trade secret protections. You'd still be violating the patent.

2. I'm not saying their arguments are valid. It's a demand letter with multiple claims. There's many reasons it might be an invalid argument but listing more than one grievance and/or not explaining them in detail are not some of those reasons.

Patents can be infringed unknowingly, independently, and with zero reference to the patent claims (or any process that implements them under license).

Nor in the EU.

There’s no reason the code cannot have multiple different things in it, right?

Where I'm at is that if these open source developers aren't selling or distributing the hardware for this drivers, then anyone that uses this driver implicitly has a license to the patents that they received with the hardware itself.

Trade secrets don't hold up because they're running off of public information either in the distributed binary drivers' behavior, or the behavior of the aforementioned hardware.

All of that being said, I know I don't have the money laying around to fight those in court, and would be drained well before any of those points are adjudicated.

Is writting software "implementing," or is compiling it and releasing binaries (for free,) executing them, or just profiting from the sale, from the perspective of patent law? Isn't describing how something works first ammendment territory, even if the speech is compilable? (err, I guess this was Scotland & UK patent law, not the US, so 1st ammendment is, of course, irrelevant.)

There is no "fair-use", non-commercial, or even personal-use exception to patent law.

Code is speech, but the 1st amendment has recognized exceptions for IP.

A program per se though is just a detailed description of the "invention" (i.e. a better version of the patent document itself). That's the entire software patent loophole; they take pure math and say "a system where a computer does the described math."

A software program is a "description" of a patent like an office building is a "description" of a blueprint.... they aren't.

They are implementations.

> That's the entire software patent loophole; they take pure math and say "a system where a computer does the described math."

The "do [x] on a computer" loophole was overturned in the US. https://en.wikipedia.org/wiki/Alice_Corp._v._CLS_Bank_Intern...

But what does any of this have to do with the above discussion?

No, a program is literally, exactly, a blueprint. It is the abstract description. This can even be formally stated mathematically (i.e. programs are formal mathematical objects). Note that you can touch an office building. You can stand inside of one. You cannot touch a program. You cannot stand inside of one. There is no concrete "thing" that is the program. You can only run a program using a (universal) computing machine, which can perform any math.

Ok, call it whatever you want, all of these semantics and metaphors are legally irrelevant anyway. I still fail to see what this tangent has to do with this conversation.

Because a patent is a description of an invention. A computer program (like a driver) is also a description of some algorithm. This is not a metaphor. It is definitionally exactly true. Saying it's protected by a patent is like saying an engineering book is protected by a patent (in fact, you can print a program in... a book, and there are many programs contained in books). It's not only false, but would go against the entire purpose of a patent, which is to publish a description of the invention.

A computer program being "a description" or being published does not preclude it from violating a patent.

Perhaps you disagree with this, but this is the current state.

It does because patents don't cover descriptions of inventions. They cover inventions. Words in a book aren't the right "type" to be able to infringe on a patent, but they can be a computer program.

You yourself linked to a case limiting even the ability to claim that running a computer program on a computer can be patented. The program itself was never patentable.

Right, software itself not patentable, only inventions. That is completely unrelated to the question as to whether software can violate a patent.

If you write software that implements an invention that is patented, you have violated the patent.

The point is that software does not implement an invention. You're making a type error. No software does. It's like saying "a green tastes good." Green doesn't taste anything, and you can't have "a green." It's a color. When you write those words it's just a nonsense string. Software doesn't implement any patent just like 5 or pi don't implement any patent. It's a formal mathematical object. It also can't violate a patent because you can't patent mathematical objects, only inventions. An implementation of a patent may contain a computer that runs software.

It's like saying a circuit diagram could infringe on a patent. No, only a circuit can. Software is the diagram. A thing running software can infringe, but software isn't the right type of thing to be able to infringe. You can print books full of detailed diagrams and instructions all day long. The patent is already supposed to describe the thing! It's not secret! A description of every last detail is not protected!

This is also why you can prove things about software. You cannot prove things about inventions; only models of the inventions. You can actually prove statements about software itself because it is already part of formal mathematics.

Again, you are conflating "what can be patented" with "what can infringe"

If you make, use, produce, supply, induce someone to use anything that does a thing that is listed in a claim of a patent -- you have violated the patent.

The argument that "software is just abstract math and so there's no way it can infringe" is bologna... like sovcit-level bologna. Any actual articulable piece of written software is not some abstract mathematical concept, it is the configuration for a machine. Courts simply do not treat software in the way you are asserting, they treat it like a component in a system. And whether or not you built the full system or you are contributing to or inducing someone else's system, doesn't matter much, it is merely the difference between direct and indirect infringement.

If what you are asserting was true, it would be great for the software industry -- we wouldn't have to worry about patents anymore!

The Supreme Court of the US literally held that software is like a blueprint, or a detailed set of instructions. Because that's what it is:

> Abstract software code is an idea without physical embodiment, and as such, it does not match §271(f)’s categorization: “components” amenable to “combination.” Windows abstracted from a tangible copy no doubt is information—a detailed set of instructions—and thus might be compared to a blueprint (or anything else containing design information). A blueprint may contain precise instructions for the construction and combination of the components of a patented device, but it is not itself a combinable component.

Courts do actually understand that software is an abstract mathematical idea. And this is the only sane way to treat software. Otherwise you'd have e.g. Lean proofs as patentable subject matter. There is no line you can draw where you say "this is software, and that is a proof." Formal reasoning (e.g. through types) is all over real world, useful software.

For what it's worth I've never actually encountered anyone who's even mentioned patents at work in the last decade. It's not a day-to-day concern that I've seen.

Yeah, when it comes to determining the question of the country of origin for the particular way they were delivering the software -- which was what quote was about.

Courts did find MS liable for infringing on AT&T's patent for Windows installed on computers in the US. And this wasn't discussed at all in that court case; it was never challenged up to SCOTUS because it was plainly a violation.

Computers running Windows with some functionality are not the same thing as Windows. That's literally the point the court made. Windows, the software, is abstract math, and cannot on its own infringe on anything. They very clearly laid out that Windows itself is a set of instructions.

Hence they could ship the intangible software itself abroad and install it without infringing on US patent law. Merely creating the software did not infringe.

That case only ruled on §271(f). Plenty of routine FOSS activities could qualify for other violations under that statute. The most likely is probably inducement -- have a README that tells someone how to install the software on a computer? You just induced them to put together the infringing system.

In practical terms there is no point in entertaining the idea of software without any relation to a computer -- people are gonna' run software on a computer, that's what it's for.

That's not quite true. While there's no exemption for personal use, patented inventions can still be used for academic and research purposes. Even if you derive income from that.

E.g. it's a fair game to write and release a book: "How to Replicate DisplayLink" that would walk the reader through the steps in implementing it.

The experimental use exception is so narrow (in the US at least) that typically even non-profit universities often cannot use them without permission.

https://gesmer.com/patent-copyright-trademark/statuatory-cha...

> it's a fair game to write and release a book: "How to Replicate DisplayLink"

And of course, patents don't protect the information that is in them -- they intentionally disclose it -- what they protect is exclusivity of use.

You can get around it by reverse engineering it as long as what's sold doesn't violate that patent. Many companies have had to reverse engineer an existing patent to figure out what they can do instead.

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

> Design-arounds are considered to be one of the benefits of patent law. By providing monopoly rights to inventors in exchange for disclosing how to make and use their inventions, others are given both the information and incentive to invent competitive alternatives that design around the original patent. In the field of vaccines, for example, design-arounds are considered fairly easy. It is often possible to use the original patent as a guide for developing an alternative that does not infringe the original patent.

I realize this is a legal case and not engineering logic, but man, they really seem to give away the game:

The letter continued to claim that Lothian would be "single-handedly eviscerating DisplayLink's competitive advantage in this crowded market by educating our competitors and other third parties as to how we implement our proprietary technology"

To be clear, a patent is an exclusive right to the specific functional invention, and if that invention happens to cover the one and only way to talk to the device, then it'll be hard to make a driver. In many cases you'll be able to make one for yourself due to some funny-business around patent exhaustion.

However, there is no universe where they can hold a valid patent that would encumber a driver for a regular USB display device. What they then might try to do is invoke DMCA, due to the device having DRM responsibilities (HDCP).

If they get trusted HDCP treatment from media players on some platforms, they might fight tooth and nail to not be broken open in public as that might end up with them losing trust from content providers...

Or maybe they're just assholes with no real rhyme or reason, who knows.

> If they get trusted HDCP treatment from media players on some platforms, they might fight tooth and nail to not be broken open in public as that might end up with them losing trust from content providers...

Yeah, I suspect the whole patent claim is just a ruse to try and prevent people from looking into their likely insecure HDCP implementation.

And a patent can be invalidated for the lack of enablement. I.e. for not disclosing sufficient information for an average skilled practitioner to re-implement it.

Reply on news.ycombinator.com