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Re: MP3 decoder packaged with XMMS

Michael K. Edwards wrote:
> Can you point me to that statute?  Is it a "hobbyist, design it
> yourself, infringe unknowingly" sort of thing, and if not, where is
> the dividing line between a precise description of the ideas contained
> in a patent and one that is so precise that it happens to be an
> executable implementation?

Infringement of European patents is a matter of national law
(art. 64 EPC). But to the best of my knowledge all European
patent laws say this.

Dutch patent law for instance says:

   Art. 53.
   1. Subject to the provisions of Articles 54 to 60, a patent shall
   confer on its owner the exclusive right:
   a. to make, use, put on the market or resell, hire out or deliver the
   patented product, or otherwise deal in it in or for his business, or
   to offer, import or stock it for any of those purposes;

   Linkname: IViR - Legislation - Netherlands - Patent Act 1995
        URL: http://www.ivir.nl/legislation/nl/patentact1995.html

   Section 60: Meaning of infringement

   (5) An act which, apart from this subsection, would constitute an
   infringement of a patent for an invention shall not do so if -

   (a) it is done privately and for purposes which are not commercial;

   Linkname: PATENTS ACT 1977
        URL: http://www.jenkins-ip.com/patlaw/pa77.htm#s60

I can't find an English text for German patent law online, so I
hope you can read German:

      11 Erlaubte Handlungen

     Die Wirkung des Patents erstreckt sich nicht auf
     1. Handlungen, die im privaten Bereich zu nichtgewerblichen Zwecken
     vorgenommen werden;

   Linkname: Patentgesetz bis 1.1.2002
        URL: http://2kpatent.de/de/patentgesetz.htm

> > I don't see where you got the "distributors" from, since the
> > note only speaks of "personal use".
> At least in US copyright law as I understand it (which borrowed the
> term from patent law), "contributory infringement" can't be found
> where there is no direct infringement to be contributed to, nor even
> where there are substantial non-infringing uses of the product and the
> distributor makes a good-faith attempt to discourage, and avoid
> deriving substantial revenues from, infringing uses.

Right. In most patent laws, the act of distribution of a product
is by itself a direct infringement. Even when the distribution
is intended for individuals that want to privately use the product.
So I don't think this is going to help you much.

This of course presumes that a sequence of bits is a "product" in
patent law. I'm not aware of any caselaw either way. But it does
seem likey that this would be covered by the "essential element"
clause in patent law. See e.g. article 60(2) and (3) UK Patent Act:

   Section 60: Meaning of infringement

   (2) Subject to the following provisions of this section, a person
   (other than the proprietor of the patent) also infringes a patent for
   an invention if while the patent is in force and without the consent
   of the proprietor, he supplies or offers to supply in the United
   Kingdom a person other than a licensee or other person entitled to
   work the invention with any of the means, relating to an essential
   element of the invention, for putting the invention into effect when
   he knows, or it is obvious to a reasonable person in the
   circumstances, that those means are suitable for putting, and are
   intended to put, the invention into effect in the United Kingdom.

   (3) subsection (2) above shall not apply to the supply or offer of a
   staple commercial product unless the supply or the offer is made for
   the purpose of inducing the person supplied or, as the case may be,
   the person to whom the offer is made to do an act which constitutes an
   infringement of the patent by virtue of subsection (1) above.

One could argue that "other person entitled to work the
invention" can mean "a person performing the acts privately
and for purposes which are not commercial". I'd have to check
with a UK colleague whether that's accurate.


Arnoud Engelfriet, Dutch & European patent attorney - Speaking only for myself
Patents, copyright and IPR explained for techies: http://www.iusmentis.com/

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