A Greek who issued some code under the GPL is fuming after he found that his work has ended up under the bonnet of Redmond software and patented in the US.
Thanassis Tsiodras has penned a moan to Slashdot saying that he wrote code in 2001, called HeapCheck, which was basically a GPL library for Windows.
It was inspired by the UNIX based ElectricFence and detected invalid read/write accesses on any heap allocations at runtime.
It was designed to help debugging sessions and was published on his site. It got a few users and he didn't think much about it.
A while back Redmond included very similar technology in the operating system called PageHeap. But he was doing a bit of Googling on his website and found that the technology he implemented, of runtime detection of invalid heap accesses, has been patented in the States.
The only reason that he found out about it was that the patent even mentions his website in the patent references.
Since he is Greek he is wondering what he should do about it. "I am not an American citizen, but the "inventors" of this technology have apparently succeeded in passing this ludicrous patent in the States.
"If my code doesn't count as prior art, Bruce Perens's Efence (which I clearly state my code was inspired from) is at least 12 years prior," he added.
He can apply to USPTO to vacate the US patent based on his and Bruce Perens' prior art, but patent may have been written in a way that took that into account.
He needs to consult a US patent lawyer, too esoteric a branch of law for amateurs.
It would be up to patent-holder to bring any action against alleged infringers. Because he issued his technology under GPL prior to patent being granted, it wouldn't take much for defense to get action thrown out of court and patent invalidated. But it needs to be brought to court by Microsoft.
He can certainly continue offering his technology under GPL and just wait for Microsoft to bring an action against him. He might need some financial help in hiring his lawyers, but in the end, he should win and recover his costs.
http://www.lawmart.com/searches/difference.htm
Prior Art may include earlier patents.
I would think that here is a case of first past the post.
A GPL only may be needed only as if the implications pertain to distribution under copyright law.
To my thinking, Patents, and the patent process, are independent of copyright and may constitute a supersedeas for implicitly and explicitly copyrighted material both domestic and foreign.
The Patent is an permit or authoritative license granted in advance and whereby required in order to bring a civil lawsuit against others who may exploit the profitability of a technology; the enforcement of which is completely behoving on the toleration of the holder with respect to due process of the law.