Well, BitTorrent as a system still needs to infringe on the patent claims. Nobody says it does yet. In principle, I could make a patent for producing yellow rub

Well, BitTorrent as a system still needs to infringe on the patent claims. Nobody says it does yet. In principle, I could make a patent for producing yellow rubber ducks efficiently, and then claim that the BitTorrent code infringes. While the patent is probably less far off than my yellow-rubber-duck one, the hint of truth is in there: it is highly likely that the protocol is not infringing at all on the patent.