[linux-audio-dev] some interesting infos about patents & opensource Was .. patents (the softsynth was patented 1997)

New Message Reply About this list Date view Thread view Subject view Author view Other groups

Subject: [linux-audio-dev] some interesting infos about patents & opensource Was .. patents (the softsynth was patented 1997)
From: Benno Senoner (sbenno_AT_gardena.net)
Date: Mon Oct 16 2000 - 02:25:16 EEST


Hi,

this is an interesting mail from a guy on the music-dsp list which answered
me some questions about patents.
I asked about the opensouce situation too.
should we be scared ?
:-)

Benno.

---------- Forwarded Message ----------
Subject: Re: [music-dsp] patents (the softsynth was patented 1997)
Date: Sun, 15 Oct 2000 15:23:33 -0400
From: Nicholas Longo <71477.2332_AT_compuserve.com>

<Nicholas said you can't "get them" on infringement,
<but at least prior art should invalidate the patent.
<(and perhaps other patents which rely on this one too ?)

Even if prior art is found, the patent is not technically
invalidated without a ruling by a court or the PTO. However
if the prior art is publicly known it is much less likely
the patent holder will try to enforce the patent.

<And who is accountable in the case of an invalidated patent ?
<I mean: if prior art is found, who gets in trouble the PTO or the
<patent holder ?
<Assume Amazon loses the 1-click patent, and then Barnes and Noble
<want their legal expenses back (because Amazon sued them for
infringement).

Noone gets in trouble unless it can be proved that the patent holder
acted in bad faith by failing to disclose prior art that was known
to them. That is, someone who applies for a patent has a duty to
disclose any information they are aware of that is relevant to their
patent application. Failing to do so is fraudulent.

In the end it should be in their best interest to uncover at
least all prior art references that are widely available. It is
expensive and time consuming to obtain and then attempt to enforce
a patent that turns out to be unenforceable.

<PS: does anyone know what happens if an opensource project breaks
<some patents ? Assume there are dozen-100's of persons involved:
<will they all get sued ? What if they are spread all over the world ?
<Will only the poor americans get in trouble ?
<Or is there an exemption rule which says as long as you do not make
<money you can "use" the idea.

There is no exception to patent infringement for "not making money"
on a project. There is the exception that anyone can make and
use a patented invention themselves but only for research purposes.
They can't distribute it, and any commercial product made using a
patented device infringes the patent.

That said, in such a theoretical open source project, probably only
one person's work would be the part that infringes a patent. But
given that several were involved, a patent holder would probably not
go after an individual or group of individuals unless they happened
to be wealthy. However, any "deep pockets" involved in the manufacture
or distribution of such an effort would be at risk, including ISP's,
Univerities or corporations whose facilities were used to make or
distribute copies. And if they are successfully sued, the individuals
involved would probably get in some kind of trouble with them, including
secondary lawsuits that would not require showing that the patent was
infringed since that was already established, but only that the individual
was involved in manufacturing and distributing the project that was
found to be infringing a patent.

An interesting example of this kind of suit is that there are now a number
secondary lawsuits resulting from the U.S. Government's anti-trust ruling
against Microsoft. For example, since their activity was found to be
illegal, some companies who may have been involved and whose stock prices
have plumetted, are being sued by their shareholders.

And yes, this is intended to scare you. I'm not a lawyer and this is not
intended as legal advice, but any lawyer worth his/her fee would do the
same.

dupswapdrop -- the music-dsp mailing list and website: subscription info,
FAQ, source code archive, list archive, book reviews, dsp links
http://shoko.calarts.edu/musicdsp/
-------------------------------------------------------


New Message Reply About this list Date view Thread view Subject view Author view Other groups

This archive was generated by hypermail 2b28 : Mon Oct 16 2000 - 02:46:49 EEST