On Wed, May 22, 2002 at 11:11:13AM +0200, Wouter Verhelst wrote: > > MOUNTAIN VIEW, Calif., - Aug. 29, 2001 - Marimba, Inc. (Nasdaq: MRBA), a > > 2001. They can't be serious. > > Even minus 18 months, there's prior art here. In the US, it's twelve months if memory serves. And of course there is prior art, don't be silly! So now what are we going to do about it? It and every other stupid patent like it? A little more digging shows Steve appears right: Prior art is a defense in patent infringement cases. We have no standing for preemptive suit to make such patents go away based on existance of prior art, unless we actually have a patent ourselves which theirs infringes. That means we must be sued by the patent holder before we can do anything at all. Then we can cite how ever many years worth of prior art we like as a defense. Then you must keep the patent holder from dropping their claim when it's clear they've lost (they can do so, after all. My understanding is that this generally costs them court fees, but whether or not that includes your legal fees I'm unsure. I also don't know for certain if that's a sure thing or if the court may decide each party pays half or whatever..) Even better, should you win, they _may_ lose their patent. Not a sure thing, and evidence suggests that the USPTO usually doesn't bother to revoke such patents. So even if we do go through all of that crap over some silly patent, we may have done nothing more than give the next poor schmuck dragged into court over the patent some ammunition if his lawyer did her homework.. There appears to be no appeals process with the USPTO once a patent is granted, either. I resubmit given the above factors the conclusion that Debian has no choice but to ignore such patents. They are unavoidable and unenforced. They encroach on so much of the Debian operating system (and any other UNIX-like platform for that matter) that there is no way we can have a distribution without some risk, minor though it be. With so many of these patents on the books and more added every day, it is reasonable to assume that there is now and shall always be some party with standing to sue over patent infringement. No effective preventative measures seem to exist, and it seems that the first step a would-be plaintiff is apt to take before considering any potentially expensive legal action (in terms of financial resources or publicity) is send a cease-and-desist letter from their legal department. Debian has never to my knowledge received such a letter. IFF we receive one, then and only then should we concern ourselves with whether or not the claim is justified. That is the time at which we should debate the merits of compliance or defense. Such a decision must be made on a case by case basis with consideration toward the future of Debian and the benefit to our users and the community at large. If we determine then that the case is not worth fighting as a project, so be it. I do not advocate putting the whole project at risk; it is already at some risk and we cannot change that except by ending the Debian project. I do advocate an end to what I consider paranoid reactions from the project which have developed in the past couple of years. Most of these patents are held by parties which do not even know who we are. And as long as we are not a threat to them, we may rest easily knowing that they honestly don't care who we are or what we're doing. This change in project opinion does not grant us a free pass to package libdvdcss or lame, unfortunately. In the US at least, the DMCA prohibits the former. And we know that the holder of the patent covering the latter is aggressively trying to defend that patent even in countries where laws indicate that software may not be patented. Caution is obviously warranted in both cases, though I do suspect libdvdcss could likely exist safely in non-US/main. -- Joseph Carter <knghtbrd@bluecherry.net> Here we go again <Knghtbrd> learn to love Window Maker. <Knghtbrd> a little NeXTStep is good for the soul.
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