> From: Les Mikesell <lesmikesell@xxxxxxxxx> . . . . > 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 . . . . > > > > 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? Nice to see you back, Les. I always learn a lot from your posts. This time, I agree with you, but you might not agree with yourself by the end of things. If you have the right to modify Product A, then I think I agree with you, you can modify it as you wish. If Product A in practice is a closed-source application, you can't modify it, though. So the right to modify the software doesn't buy you anything. If you obtain Product B that implements some patented process from someone who does not have a patent license, then you should not use it. Even if the author gives you the right to modify his source code, he does not have the right to use the patented process in the software he's distributing to you. He owns his code, to be sure, but he doesn't own the process. That's owned by the patent holder, who didn't get paid. If the process isn't patentable where he lives, he's free to give the software to people there, and to give you different software that doesn't rely on the patented process. There are a lot of wrinkles here. What if the author doesn't know that you got the software? What if you got the software from someone else who lives where the author does? What if the Product B software doesn't really implement the patented process? What if you didn't know that the process was patented in the first place? You need an attorney for these questions. Whether you've licensed some other software that uses the patented process has no bearing. You're still free to use it, but you chose not to. Here's another way to look at it. If I buy a car with anti-lock brakes, I get to use that patented technology. I can disassemble the ABS module if I want and try to make my own module (the right-to-modify point). But I can't get anti-lock brakes on my next car for free; nor can I demand free ABS on a Chrysler just because my Ford ABS module is sitting on the shelf. I always worry that I won't make the point I intend, or maybe offend someone in doing it. Does that help you to see my point? Erik
