If one wants to use free software like Machinekit covered by GPLv3 in the further development of a device covered by the patent, does the use of the software have any effect on the validity of the patent?
here are three things you need to consider
- It does not matter as long as your invention / the novelty is not
due to or 'tied into' MachineKit. (think of it like this - there are claims that have claim element which may or maynot be patented elsewhere; what really matters is
your noveltywhere does it lie?)
- Another aspect you need to be aware of is GPLv3 itself - GPLv3
explicitly states something to the effect that anyone who licenses a
program under the GPLv3
licenses both copyrights as well as patentsto the extent that this is necessary to use the code licensed by them.
- The GPL also says that modified versions, if released, must be “licensed … to all third parties.”
So few questions to ask yourself what part of the novelty is in the software... Are you going to modify or make additions to MachineKit? - maybe add new HAL components?
That is a very simplistic answer, please consult an attorney for a more through answer.
I suspect the IP in the patented device is not susceptible to dilution from any later developments or improvements. It is possible for some later development to "improve" around the patented IP, but the pre-existing IP is still in force for as long as the patent is valid.
The GPL tries to make folks who create and license under the GPL promise to not encumber later developers with patent licensing if they do get a patent on the method or process the GPL code implements. The GPL has no teeth whatsoever on other IP even if GPL copyrighted code later mingles with the IP... IMO.