[vorbis] Fraunhoffer claims patents on other formats

[John Morton]

On Mon, 02 Oct 2000 00:04:23 -0400 Marshall Eubanks <vorbis at xiph.org> wrote:

> > That shouldn't be necessary. Mearly documenting the technology used in
> > Vorbis with indepenently verified dates of first use would mean that
> > Vorbis would have prior art claims should anyone else wish to patent the
> > tech that's being used.
> 
>    I think that that is naive, although maybe the laws in
> New Zealand are different.

No idea, really.
 
> This applies to the US only :
> 
> We used to be first to invent - unlike the rest of the world, which was
> first to file.
> 
> Now we are basically on the first to file system too, with one out.
> 
> Suppose there were no patents applied for with Vorbis.
> 
> My understanding is that if someone else invented something in Vorbis
> AND got a patent on it (not just applied for it, but received it),
> THEN it would be up to Vorbis implementers to show that they indeed
> had prior art (i.e., they would have a defense against a suit) 

This is what I understand is the case.

> AND the patent
> would still stand, except just not for the vorbis implementers
> (i.e., the implementers would be protected, but no one else could be)
> AND that the implementers would not have standing to sue to
> invalidate the existing patent.

I was unaware that this is the case. In fact, this is the first I've heard
of it in any patent discussion - this would imply that the video evidence
of hyperlinks in use in 1968 will have no effect on British Telecom's 1976
patent claim on hyperlinking. 
 
> This does not sound like the way to secure the open source movement.
> 
> WHEREAS, if you have an open source patent, you can just sue anyone who
> tries to patent it or use it in an non-open source fashion your software.
> 
> PLUS, the real benefit of patents is to horsetrade - don't sue us
> on this, and we won't sue you on that. No patents, no horsetrading.

Ok. Let's assume you're right: 

- Who get's to hold the patent? Monty? ICast?
- What sort of license arrangements are they going to arrange with the
   public? 
- What if Icast get taken over by Evil Corp or Monty get's bitten by
   a radioactive hamster and turns into a supervillain? Will we have a
   license that ensures we still get to use Vorbis technology free from fees?

Clearly holding patents opens a whole can of worms as far as licensing
issues goes; ones that FSF's lawyers have already ventured down, so the
Ogg project would be breaking new ground. 

> I am not a lawyer, but I could easily get a legal opinion here.

That would be good. 

John

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