Re: MP3 decoder packaged with XMMS
On 7/12/05, Dan Ravicher <email@example.com> wrote:
[quoting, I think, Daniel James]
> > That seems a little 'head in the sand'. The MP3 patent holders have a
> > truckload of patents on the format in many countries, going back to
> > the 1980s. I don't see how a business could distribute free software
> > on the basis that if it came to a lawsuit for patent infringement, it
> > could just deny that patent law applied. A lawsuit would destroy my
> > start-up company, even if we won in court.
> Patentees only win patent infringement cases 1/3 of the time, so it is
> not unreasonable to feel confident that a dispute would result favorably
> for the accused infringer. Further, whether your company or any other
> defendant could afford to defend yourself if sued has no impact on
> whether a "condition" has been placed on you. That's your financial
> situation, not a condition placed on you by a court or yourself.
Mr. James -
If you were inclined to place any weight on this sort of statistic,
you might do well to read Knorr-Bremse v. Dana,
http://caselaw.lp.findlaw.com/data2/circs/Fed/011357v2.html , paying
particular attention to this paragraph:
Fundamental to determination of willful infringement is the duty to
act in accordance with law. Reinforcement of this duty was a
foundation of the formation of the Federal Circuit court, at a time
when widespread disregard of patent rights was undermining the
national innovation incentive. See Advisory Committee On Industrial
Innovation Final Report, Dep't of Commerce (Sep. 1979). Thus in
Underwater Devices, Inc. v. Morrison-Knudsen Co., 717 F.2d 1380 (Fed.
Cir. 1983) the court stressed the legal obligation to respect valid
patent rights. The court's opinion quoted the infringer's attorney
who, without obtaining review by patent counsel of the patents at
issue, advised the client to "continue to refuse to even discuss the
payment of a royalty." Id. at 1385. The attorney advised that
"[c]ourts, in recent years, have -- in patent infringement cases --
found the patents claimed to be infringed upon invalid in
approximately 80% of the cases," and that for this reason the patentee
would probably not risk filing suit. Id. On this record of flagrant
disregard of presumptively valid patents without analysis, the Federal
Circuit ruled that "where, as here, a potential infringer has actual
notice of another's patent rights, he has an affirmative duty to
exercise due care to determine whether or not he is infringing,"
including "the duty to seek and obtain competent legal advice from
counsel before the initiation of any possible infringing activity."
Id. at 1389-90.
The Knorr-Bremse case revised one specific aspect of the previous
"willful infringement" standard (removing a Catch-22 involving
attorney-client privilege), but reliance on broad-brush statistics is
still clearly not advisable.