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Re: MP3 decoder packaged with XMMS

Michael K. Edwards wrote:
> On 7/16/05, Arnoud Engelfriet <galactus@stack.nl> wrote:
> > 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:
> [snip]
> It would clearly be a misreading of the legislative intent to say that
> neither manufacturer nor distributor nor end user needs to obtain a
> patent license just because the end user isn't making "commercial" use
> of the product.

Note I was talking about the "essential element" of a patent.
That's not the same thing as the patented product. Distribution
of such a product is always infringement. If you don't distribute
the product, but instead only an essential part thereof, then
you enter a different area of patent law.

> Probably not, if the only basis for that entitlement is the statutory
> out provided in 60 (5) (a).  But if Thomson actually were to express
> the intention of exempting private users of an open source
> implementation from the need for a patent license ever to have been
> obtained for _their_copy_ 

I'm not sure where you get that, but it certainly doesn't seem
to be the intent of Thomson's statement quoted earlier. All they
said was "private use does not need a license." They were very
careful to avoid statements about (noncommercial) distribution.

Being Dutch I see a parallel with our law on a certain plant -
feel free to smoke it, but if you sell it, you're in trouble.

> I'm not saying that I think that Thomson is offering such a deal, but
> I'm not saying they aren't (or haven't already) either.  My impression
> is that they are focusing on extracting revenues in return for the
> mastering of MP3s for purposes of commercial distribution.  

That's my impression as well. It doesn't make sense to go after
non-commercial distributions, since there's no license money to
be obtained. But if the non-commercial distribution hurts the
license stream, then the patent holder could consider an injunction.


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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