From: Tom Knight <tk@reagan.ai.mit.edu>
Date: Wed, 1 Sep 93 12:59:58 PDT
To: cypherpunks@toad.com
Subject: Fair Use
In-Reply-To: <9309011744.AA12892@matt.ksu.ksu.edu>
Message-ID: <19930901195515.2.TK@ROCKY.AI.MIT.EDU>
MIME-Version: 1.0
Content-Type: text/plain


    Date: Wed, 1 Sep 1993 13:44 EDT
    From: danodom@matt.ksu.ksu.edu (Dan Odom)

    Is this just for RSA, or for all patents?  If PKP wanted to forbid
    academic use of RSA (or require a license for it), could they legally
    do so?  Assume for now that the patent is valid, which it may not
    be...

    I ask all this because I often hear researchers looking for a cure for
    (insert your favorite aliment here) complain that they have to pay
    patent royalties on the gentically-modified animals they use in their
    work, and if, say, two patented rabbits produce offspring, they
    have to pay royalties on each of the offspring as well.  This is
    academic use (to me anyway; I don't know about legally), but requires
    royalties.

The exemption from patent protection applies only to research which
attempts to improve or extend the patented idea.  Thus, if you were
breeding patented insulin-dependant rabbits with the intent to produce
better ones, this would be acceptable.  If, however, you wanted to test
your new diabetic drug on the rabbits, then you owe the patent holder a
royalty.

Using PGP (as opposed to writing a new one, or improving it, or
attempting to use it in new ways), even by academics, is probably
questionable in the US under patent law.  Developing new versions of RSA
code or algorithms clearly is legal, even for private commercial firms.
Patenting the improvements is legal and encouraged.  Selling or using
a patented invention, even internally, is prohibited.

So it all depends.  Are you a user or an improver?  Can you make a
legitimate claim to be testing new ideas, implementations, or
applications, or are you just using someone else's implementation.

A paper trail showing that you are thinking about ways to improve or
further develop the ideas might be a powerful defense.  Like, for
example, messages to this forum.