[vorbis-dev] patents

Marshall Eubanks tme at 21rst-century.com
Tue Dec 19 20:24:51 PST 2000

Gabriel Bouvigne wrote:
> > I think you would have to look at both, since both owners could feel that
> you are
> > infringing on their patent and sue you. If the patents would actually
> cover the
> > same invention, you could attack the second one by arguing that there was
> prior
> > art as documented by the first patent. If you want to find prior art for
> both
> > patents, you must find a description of the patent's subject that was
> available to
> > the public before the first patent was filed.
> In the patent US5579430:
> "Processes such as those described above are known, by way of illustration,
> from DE-PS 33 10 480 or from WO 88/01811. Moreover, the cited publications
> are to be referred to for the explanation of all the terms not made more
> apparent herein."
> It looks a lot like a reference to prior art. Would it means that publically
> available prior art does not invalid patents if the work was done by the
> same company, even if the work was published?

I am not a lawyer - YMMV

You should look at http://www.openpatents.org/nutshell.php

I believe that in the USA you have 1 year from the date of first
publication to
file for a patent.

A SEPARATE party, however, can invalidate a patent by filing for a
similar one minutes
before you do. 

It used to be we (USA) used a first to invent system - now we are a
modified first to file system.
If you invented earlier, but filed later, then (I believe) you can only
escape the other
patent's reach for yourself. 

Remember, outside parties do not (yet) get to comment on pending
patents. Prior art counts
for most if it is seen by the patent examiner...

Who "yourself" might be for an open source project is obscure. My guess
is that a decade or so of
litigation might clear this up.

My humble opinion :

1.) Patent whatever you can.
2.) Publish (not just a web page, but really publish) as much as
possible as soon as possible. 
Get it out there. Include references.

I know that this is work, and I appreciate that you have been
publicizing and
documenting this as much as possible. The IP issue will, alas, not go
away, though.


> Btw if some people think that we must stop discussing patents here to use a
> separate list without archives available and controlled subscribers, I'd be
> happy to switch to this list.
> Regards,
> --
> Gabriel Bouvigne - France
> bouvigne at mp3-tech.org
> mobile phone: gsm at mp3-tech.org
> icq: 12138873
> MP3' Tech: www.mp3-tech.org
> personal page: gabriel.mp3-tech.org

   Marshall Eubanks
   Multicast Technologies, Inc.
   10301 Democracy Lane, Suite 201
   Fairfax, Virginia 22030
   Phone : 703-293-9624          Fax     : 703-293-9609     
   e-mail : tme at on-the-i.com     http://www.on-the-i.com

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