Subject: Re: [linux-audio-dev] EVO legal status
From: Marek Peteraj (petemar_AT_kiwwi.sk)
Date: Wed Jan 16 2002 - 01:17:51 EET
On Tue, 2002-01-15 at 19:54, Paul Davis wrote:
> >Well being one of those people I guess I should speak up and debunk
> >the nasty rumor that I have "vanished off the face of the earth"
> >before it spreads. I'm just happen to be in lurker mode now.
>
> sorry for seeding misinformation.
>
> >I have also been in contacted by Nemesis and they have indicated that
> >if I were to do anything that infringes on thier patent(s) they
> >_WILL_ litigate. My initial inquiries with a patent attorney
> >indicates that a typical patent fight runs about a Million dollars.
> >A little more than I can afford currently.
>
> i wonder what's going on with steinberg. halion clearly uses the same
> technology; i seem to recall a story on harmony central about a
> lawsuit, or maybe it was in sound on sound. not sure though.
>
> >There is an option where you can request the patent to re-evaluate
> >the patent. However, if they still don't find any problems then you
> >just made the patent _much_ harder to invalidate. Better to actually
> >challenge it. Just more $$
> >
> >Originally I was all about messing with the sampler stuff despite the
> >patents. But after all the stuff with the Dmitry Sklyarov case I am
> >a little leery of any public involvement with the sampler code.
>
> this is definitely a problem. let me make two suggestions.
>
> 1) i will try to arrange a time to talk to fairly good
> friend of mine who is a patent attorney, and see if i can
> flush out the options a little more.
I'm currently writing a master thesis on similar subject, so I would
like to participate...I haven't dealed particularly with s/w patents
however, since they're US specific (yet?).. Perhaps by taking a closer
look at US legislative and judgements I could come up with some useful
ideas....
>
> 2) i can see no reason not to write EVO so that it doesn't
> explicitly do anything like the patent's claim. this can
> be done very easily by the most obvious (yet inapplicable
> prior art): use the kernel's own disk caching.
>
> let me expand on (2) just a little bit. the main reason why the patent
> should not have been granted is that it takes a generic method
> (readahead with a cache) and applies it to a specific domain without
> actually changing or improving the generic method.
As far as I understand:
from the US patent act:
sect. 282
"The burden of **establishing invalidity of a patent** or any claim
thereof shall rest on the party asserting such invalidity.", followed by
defenses
"(2) Invalidity of the patent or any claim in suit on any ground
specified in part II of this title [35 USCS Sects. 100 et seq.] as a
condition for patentability,"
we can use this to
> our advantage. instead of writing code that infringes on the patent,
> simply write code that uses the facilities of the OS to do the same
> thing completely transparently.
>
> there are a couple of easy ways to do this. (...) i cannot see how a lawyer could possibly argue that we are
> infringing the patent when there will be no code in the program that
> does anything like what the patent describes. the fact that our OS of
> choice happens to do readahead, using a methodology that predates the
> patent by at least 25 years, seems to me be unimpeachable.
I completely agree.
its true
> that we will still be left with code whose only purpose is to initiate
> readahead by the kernel.
It seems there are two ways to solve this: a legal and a technical one.
that then raises tricky legal questions about
> infringement: since we don't do the readahead, we aren't infringing,
> but since we initiate the readahead, perhaps we are.
I very much doubt using an OS capability would infringe *any* patent.
:) But that actually depends on courts' reasoning etc.
> i will also discuss this strategy with my patent lawyer friend to see
> just how watertight or pathetic it may actually be.
Please let us know. :)
Marek
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