Re: [Patents] Re: patent sharks against critics

[Jean-Marc Le Peuvédic <cocktails@freesurf.fr>]

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 propriété 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 Peuvédic