Re: XMMS and the new MP3 patent terms
On Thu, 2002-08-29 at 12:18, David Wright wrote:
[...]
> So in theory it is never necessary to file a patent in both places. In
> practice, people do it sometimes because of: (1) speed -- the other
> patent office might get done faster -- and (2) legal convenience --
> paying a second patent filing fee is cheaper than paying a lawer to
> argue that the patent would have been accepted had it been filed in the
> jurisdiction in question.
Nonsense. If you don't have a patent in, say the US, then you don't
have any protection there. Anybody can copy, sell and use your
invention in that region. This can be a considerable loss in income
(licensing fees) for the inventor. (There are some cases in which it
may then not be worth a competitor using your invention because the
remaining, non-protected market is to small to be economically viable).
And once it has been published in the other country, it becomes prior
art so that a filling in another country is (theoretically) going to
fail. Arguing that it would have been granted is irrelevant - it
wasn't. (At least that's how it works for EPC countries, maybe US is
different !)
Most people seem to be going over to PCT applications anyway when they
are after a worldwide protection.
>
> If you did get an MP3 patent through the USPTO -- and I wouldn't put it
> past the USPTO to grant it without noticing the EU patent -- then when
> you came into conflict with Frauenhofer, the EU patent, being earlier,
> would automatically win.
Yes, but the converse is not necessarily the case. This is where US and
European patent systems differ. US works on the principle of first to
invent i.e. if you can prove that you invented the subject of a granted
patent before the patent applicant did, you can gain effective ownership
of that patent. The EPC works on the principle of first to apply: who
actually invents something first is irrelevant. The first to apply gets
the patent.
Andy
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