Erik Hemdal wrote:
. . .
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.
Take a slightly different approach here. Suppose instead of replacing
product A with product B, you make a small modification to product A. Do
you have the right to do that and still use it? Then you make another
small modification. Is it still yours? Repeat until it becomes the
same as product B. At what point did you lose the right to do the
operation covered by the patent whose rights were obtained by the
purchase of product A, which you still own?
--
Les Mikesell
lesmikesell@xxxxxxxxx
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
