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Date: Thu, 06 May 2004 00:35:00 +0200
From: =?ISO-8859-15?Q?Jean-Marc_Le_Peuv=E9dic?= <cocktails@freesurf.fr>
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To: Serge Marelli <serge.marelli@linux.lu>
Cc: Hartmut Pilch <phm@a2e.de>, "patents@aful.org" <patents@aful.org>
Subject: Re: [Patents] Re: patent sharks against critics
References: <4096A032.60302@gnuwhv.de>	 <1083656228.3114.10.camel@dushnock.local>	 <Pine.LNX.4.58.0405041133350.14140@querty.oas.a2e.de> <1083763440.2905.36.camel@dushnock.local>
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Serge Marelli wrote:

>On Tue, 2004-05-04 at 11:37, Hartmut Pilch wrote:
>  
>
>>>>Europe Shareware received a letter from law firm Jenkens & Gilchrist 
>>>>where they ask them to buy a license for the US 4,698,672 patent of 
>>>>Compression Labs (the JPEG patent).
>>>>        
>>>>
>>>Hum... this is something I'm not sure I understand...
>>>
>>>If I buy a (commercial) software (regardless of proprietary vs. free
>>>issues please) and that software enables me to generate JPEG images (or
>>>MPEG movies or anything covered by a patent... ); do I, as a USER and a
>>>legitimate customer of the company still have get a license for the
>>>patent?
>>>      
>>>
>>Yes.
>>Patents are about use.
>>A user must make sure that his supplier takes the responsibility for all 
>>claims.
>>    
>>
>
>This looks insane to me.
>If I buy a video camera, and assuming the camera uses several patents
>(which we can be certain of).  Assuming the maker of the camera has
>aquitted their obligation w.r.t. patents and licensing.
>
>I, the customer, the _user_, would still have to go and pay patent
>licenses in order to use the camera and make films?
>  
>
If you buy a patented knife, use it for a while to cut things and then 
sell the knife as a used good, you do not need to license the knife 
patent, nor do you need to pay a fee every time you cut something with 
the knife.  Under French law (art. L613 du code de la proprit 
intellectuelle) the following activities are forbidden : *making* the 
knife, *offering* the knife , *putting* the knife on the market, *using* 
the knife, *importing* or *stocking* the knife with the intent of making 
it, offering it, putting it on the market or using it (according to the 
official english translation, the french original being more ambiguous 
regarding usage). It is also forbidden to supply a third party the means 
which are essentially and obviously required to  infringe on the patent 
if you know that.

I assume that this last article was added to prevent companies from 
setting up unsolvable spin-off companies for the sole purpose of infringing.

*BUT* all the acts prohibited by the patent are permitted when they are* 
done privately _and_ for non-commercial purposes*, or when they are done 
for *experimental purposes relating to the subject matter of the 
patented invention* (in order to design a better knife, even in the 
framework of your knife manufacturing business).

*AND* (art L613-6) the rights afforded by the patent do not extend to 
acts concerning the knife which are done on French territory after the 
knife has been put on the market anywhere within the EU. Therefore if 
you bought your knife legally in the EU you can use it and trade it any 
way you like. I think that making the knife is not an considered an act 
concerning the knife by the Law, but is commonly called counterfeiting.

The same rule applies to your camera and the embedded sw that is *sold* 
with it. You would only need to get licenses if you are a professional 
photographer *and* you built the camera yourself according to the patent 
or imported it into the EU before it was allowed by the patent owner.

>If now I use an adapter and software to transfer _my_ movies to mpeg
>files, assuming I have legally bought commercial software whose
>developpers & producers have aquitted theirs patent dues, I, the
>customer/user would still have to go and find out which patents I should
>buy licenses for?
>
>  
>
Where can you buy commercial software ? I don't know any commercial 
software that is  for sale. The license terms always include "/This 
software is licensed, not sold/" or equivalent terms. It also probably 
includes /"This software is provided AS IS without any warranty of any 
kind, either express or implied, including, but not limited to, the 
implied warranties of merchantability and fitness for a particular 
purpose"/. This means that you take personnally all the risks associated 
with using the software, including the risk of infringing on a patent 
whose existence was unknown to both you and the software supplier. 
However, unless patent rights are modified for software (with program 
claims, they might very well be), you only risk litigation if you use 
the software for commercial purposes or public representations (of your 
movies).

>I don't understand how this would stand in a reasonable legal system.
>
>It seems insane and impossible.
>  
>
It is not yet insane but software patents would make it so. Software 
patents would instantly drive Open Source out of the commercial 
environment for fear of massive litigation, and dry up the financing 
coming from commercial companies who use Open Source software. I'd still 
be able to run apache on my PC, version 2.0.49 forever.

Jean-Marc Le Peuvdic


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Serge Marelli wrote:
<blockquote cite="mid1083763440.2905.36.camel@dushnock.local"
 type="cite">
  <pre wrap="">On Tue, 2004-05-04 at 11:37, Hartmut Pilch wrote:
  </pre>
  <blockquote type="cite">
    <blockquote type="cite">
      <blockquote type="cite">
        <pre wrap="">Europe Shareware received a letter from law firm Jenkens &amp; Gilchrist 
where they ask them to buy a license for the US 4,698,672 patent of 
Compression Labs (the JPEG patent).
        </pre>
      </blockquote>
      <pre wrap="">Hum... this is something I'm not sure I understand...

If I buy a (commercial) software (regardless of proprietary vs. free
issues please) and that software enables me to generate JPEG images (or
MPEG movies or anything covered by a patent... ); do I, as a USER and a
legitimate customer of the company still have get a license for the
patent?
      </pre>
    </blockquote>
    <pre wrap="">Yes.
Patents are about use.
A user must make sure that his supplier takes the responsibility for all 
claims.
    </pre>
  </blockquote>
  <pre wrap=""><!---->
This looks insane to me.
If I buy a video camera, and assuming the camera uses several patents
(which we can be certain of).  Assuming the maker of the camera has
aquitted their obligation w.r.t. patents and licensing.

I, the customer, the _user_, would still have to go and pay patent
licenses in order to use the camera and make films?
  </pre>
</blockquote>
If you buy a patented knife, use it for a while to cut things and then
sell the knife as a used good, you do not need to license the knife
patent, nor do you need to pay a fee every time you cut something with
the knife. Under French law (art. L613 du code de la proprit
intellectuelle) the following activities are forbidden : <b><font
 color="#000066">making</font></b> the knife, <font color="#000066"><b>offering</b></font>
the knife , <b><font color="#000066">putting</font></b> the knife on
the market, <b><font color="#000066">using</font></b> the knife, <b><font
 color="#000066">importing</font></b> or <b><font color="#000066">stocking</font></b>
the knife with the intent of making it, offering it, putting it on the
market or using it (according to the official english translation, the
french original being more ambiguous regarding usage). It is also
forbidden to supply a third party the means which are essentially and
obviously required to infringe on the patent if you know that. <br>
<br>
I assume that this last article was added to prevent companies from
setting up unsolvable spin-off companies for the sole purpose of
infringing.<br>
<br>
<b><font color="#990000">BUT</font></b> all the acts prohibited by the
patent are permitted when they are<b><font color="#990000"> done
privately <u>and</u> for non-commercial purposes</font></b>, or when
they are done for <font color="#990000"><b>experimental purposes
relating to the subject matter of the patented invention</b></font> (in
order to design a better knife, even in the framework of your knife
manufacturing business).<br>
<br>
<font color="#990000"><b>AND</b></font> (art L613-6) the rights
afforded by the patent do not extend to acts concerning the knife which
are done on French territory after the knife has been put on the market
anywhere within the EU. Therefore if you bought your knife legally in
the EU you can use it and trade it any way you like. I think that
making the knife is not an considered an act concerning the knife by
the Law, but is commonly called counterfeiting.<br>
<br>
The same rule applies to your camera and the embedded sw that is *sold*
with it. You would only need to get licenses if you are a professional
photographer *and* you built the camera yourself according to the
patent or imported it into the EU before it was allowed by the patent
owner.<br>
<blockquote cite="mid1083763440.2905.36.camel@dushnock.local"
 type="cite">
  <pre wrap="">
If now I use an adapter and software to transfer _my_ movies to mpeg
files, assuming I have legally bought commercial software whose
developpers &amp; producers have aquitted theirs patent dues, I, the
customer/user would still have to go and find out which patents I should
buy licenses for?

  </pre>
</blockquote>
Where can you buy commercial software ? I don't know any commercial
software that is for sale. The license terms always include "<i>This
software is licensed, not sold</i>" or equivalent terms. It also
probably includes <i>"This software is provided AS IS without any
warranty of any kind, either express or implied, including, but not
limited to, the implied warranties of merchantability and fitness for a
particular purpose"</i>. This means that you take personnally all the
risks associated with using the software, including the risk of
infringing on a patent whose existence was unknown to both you and the
software supplier. However, unless patent rights are modified for
software (with program claims, they might very well be), you only risk
litigation if you use the software for commercial purposes or public
representations (of your movies).<br>
<blockquote cite="mid1083763440.2905.36.camel@dushnock.local"
 type="cite">
  <pre wrap="">I don't understand how this would stand in a reasonable legal system.

It seems insane and impossible.
  </pre>
</blockquote>
It is not yet insane but software patents would make it so. Software
patents would instantly drive Open Source out of the commercial
environment for fear of massive litigation, and dry up the financing
coming from commercial companies who use Open Source software. I'd
still be able to run apache on my PC, version 2.0.49 forever.<br>
<br>
Jean-Marc Le Peuvdic<br>
<br>
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