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Re: nomarch-1.2 - Problems with RLE patent 4,586,027



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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