> Message: 2 > Date: Fri, 06 Jul 2007 11:01:15 -0500 > From: Les Mikesell <lesmikesell@xxxxxxxxx> . . . > > > >> I think there would be an interesting legal argument that nearly all > >> potential users have already paid the relevant patent royalties > >> indirectly in the form of drivers and other software provided by the > >> hardware vendors of the devices in question (and included in the cost), > >> or in the copy of Windows they were essentially forced to buy with the > >> computer. Since they have paid to use the covered algorithms and since > >> patents cover the process not specific instances, they should be > >> permitted to use a version of it that actually works. Of course I don't > >> want to spend my own money to test this argument... > > I think you're wise. Patent licenses cover the processes, but software licenses cover the individual implementations that might use patented inventions. So you or I would probably be toast using that argument. Inventor patents an invention under Patent 1 and licenses it to Developer, who releases "Product A". This product uses the invention in Patent 1 legally, because Developer paid for a patent license. You license Product A from Developer when you buy your PC and a copy of Windows. You have a license to use the Product, but you don't have any rights to exploit Patent 1 -- just to use the particular implementation you licensed from Developer. Let's say someone else uses the invention in Patent 1 in Product B, but he doesn't obtain a patent license. If you use Product B, you are at some risk, because Product B infringes Inventor's patent rights. You might get away with it for a while, if Inventor doesn't protect his invention, or just doesn't notice that Product B came out. But you're exposed nonetheless. The gripe I have with DRM and measures against reverse-engineering is that they make tinkering impossible and illegal. If I bought a product, traditionally I could take it apart to learn how it works. I could make myself smarter, at the risk of breaking something that I paid money for. After tinkering, I still could not use the patented inventions I found unless I obtained a patent license. I could, however, try to outwit the patent holder by doing the same job in a different way. One could argue that this is a big benefit of the patent system -- it documents inventions, gives patent holders a reward, and other inventors an incentive to innovate some more. But DRM methods that make tinkering impossible and laws that make tinkering illegal destroy this benefit. Erik
