Erik Hemdal wrote:
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?
I don't think this point is clear at all. This is software, remember,
just a collection of bits and I'm introducing the modifications myself.
Suppose I rearrange a few of the bits in program A as my own
modification, but keeping all the 1's and 0's that used to be there.
Suppose I keep rearranging them until they look just like program B
which might be something I developed myself or it might be very close or
identical to something someone else has done and published. At what
point do I stop having the right to use the process permitted by those
original bits that I still own. Now it becomes a question of whether I
have the right to use the parts of that paid-for Ford ABS if I bolt them
onto a Chrysler myself.
--
Les Mikesell
lesmikesell@xxxxxxxxx
