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Government Patents Your Rights Online

Can We Legislate Past the H.264 Debate? 310

Posted by Soulskill
from the presuming-a-lot-about-our-legislators dept.
Midnight Warrior writes "We could solve the H.264 debate if a country's legislature were to mandate that any patents that contribute to an industry-recognized standard were unenforceable in the application of that standard. Ideally, each standard would also be required to have a 'reference design' that could be used without further licensing. This could also solve problems with a ton of other deeply entrenched areas like hard drives, DRAM, etc. RAND tries to solve this strictly within industry, but both the presence of submarine patents and the low bar required to obtain a patent have made an obvious mess. Individual companies also use patent portfolios to set up mutually assured destruction. I'm not convinced that industry can solve this mess that government created. But I'm not stupid; this clearly has a broad ripple effect. Are there non-computer industries where this would be fatal? What if the patents were unenforceable only if the standard had a trademark and the implementer was compliant at the time of 'infringement'? Then, the patents could still be indirectly licensed, but it would force strict adherence to standards and would require the patent holders to fund the trademark group to defend it to the end. In the US model, of course."
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Can We Legislate Past the H.264 Debate?

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  • by fph il quozientatore (971015) on Sunday May 09, 2010 @11:29AM (#32147200) Homepage
    What's an "industry-recognized standard"? Who has the authority to make them? Defining this could raise more problems than the ones this whole thing is supposed to solve...
    • by WrongSizeGlass (838941) on Sunday May 09, 2010 @11:35AM (#32147256)

      Can We Legislate Past the H.264 Debate?

      No.

      What's an "industry-recognized standard"?

      "No" is recognized by almost every person, corporation and country. I'd say that's pretty standard.

      This is just a bad idea ... even worse than letting people like me post on Slashdot.

      • by larry bagina (561269) on Sunday May 09, 2010 @12:06PM (#32147520) Journal
        Congress could.

        Whereas H.264 ("The Standard") is a standard licensed under reasonable and non-discriminatory terms which promotes the science and useful arts.... bleh bleh bleh... any patent infringement claims against H.264 must be made known within 6 months of the passage of this law. Failure to make said patent infringement claims known within the specified time period shall prevent any future claims, actions, lawsuits, or other method of redress with respect to the implementation and/or use of the standard

        • by tambo (310170) on Sunday May 09, 2010 @01:32PM (#32148170)

          ...any patent infringement claims against H.264 must be made known within 6 months of the passage of this law.

          I don't think that's what the OP means. Here's what he wrote:

          any patents that contribute to an industry-recognized standard were unenforceable in the application of that standard.

          I think he means that any patents contributed to an industry standard consortium (like the WiFi Alliance) can't be enforceable. You're suggesting something about patents not contributed to the standards body being enforced against implementations of the technology that are authorized by the standards body. Or something.

          Honestly, I'm not entirely sure what either of you mean, or why. And IAAL - in fact, I practice in this area every day.

          Is this about making sure that technologies issuing from the standards body are freely available for use by anyone? That's the whole point of the patents owned by the body - to ensure that implementations follow the guidelines of the standards body (particularly about compatibility.) So you're lobbying to allow people to implement standardized technologies in non-compatible ways - i.e., in favor of "embrace, extend, extinguish?" I don't think anyone wants that.

          Or maybe you're arguing that if a company has technology and patents verging on the subject matter of an industry standard - e.g., a technology competing with WiFi - but chooses to keep it proprietary, then the company can't assert its patents against implementations issuing from the standards body. That's also a bad idea - should we really force the entire industry onto one standard? Doesn't that deter the advancement of technology through the development of alternative standards that might be better? Bluetooth was first conceived as a potential competitor for WiFi, but it has its own niche and is widely implemented for headsets and such. Under this type of rule change, Bluetooth would have been scrapped as soon as WiFi took hold.

          As an aside - the "submarine patents" cited by the author of this post haven't existed for decades, because (1) the patent term calculation was changed to be measured not from the date of issue, but from the date of filing, and (2) most patent applications are published at 18 months.

          This is a complex field. It's easy to get confused. But the field suffers from a wide range of folks who don't understand it, and yet still want to "fix" it. Hence, this post, and many like it on Slashdot and elsewhere.

          • by Rix (54095) on Sunday May 09, 2010 @03:21PM (#32148764)

            That's what this fight is about, and why Vorbis is being developed. And submarine patents do exist; there's much FUD by MPEG-LA members being spread about the possibility of Vorbis infringing yet unknown patents.

            What we really need is compulsory licensing at some percentage of the per head sale price. That way we still get the commercial value of patents without discriminating against non-commercial uses.

            • by Simetrical (1047518) <Simetrical+sd@gmail.com> on Sunday May 09, 2010 @05:02PM (#32149298) Homepage

              And submarine patents do exist

              The term submarine patent [wikipedia.org] originally referred to a scenario in which you'd file a patent, let the procedure stall indefinitely, and only complete the process once you have someone to sue. Formerly in the U.S., you'd then get the full patent term starting from when the patent was actually granted, which could give you extra years of patent life. It also meant that nobody could possibly know about the patent, because it didn't get published until the end. But you still got most of benefits of having the patent.

              The rules for granting patents in the United States were changed years ago, so this is no longer possible. Submarine patents thus do not, strictly speaking, exist anymore. But the term has caught on to just mean "patents no one knows about", and in that sense of course you still do have submarine patents.

            • by tambo (310170) on Sunday May 09, 2010 @06:22PM (#32149742)

              And submarine patents do exist; there's much FUD by MPEG-LA members being spread about the possibility of Vorbis infringing yet unknown patents.

              That's not a "submarine patent," which has a very specific meaning in this field.

              What you describe is just MPEG-LA spreading FUD. And the standard response here is: "patent app serial numbers or STFU." Either MPEG-LA can point specifically to the applications which (if they actually mature into patents) it believes are being infringed - or it can't, and its accusations of infringement are meritless. It's that simple.

              What we really need is compulsory licensing at some percentage of the per head sale price.

              Even looking past the obvious question ("How does this point relate at all to anything in this thread?")... compulsory licensing suggestions have a common problem: who establishes the pricing, and based on what data and guidelines?

              Usually, what people mean by these suggestions is: "Let's craft a body that's allowed to grant licenses to patented technologies for $cheap!" The problem with all such suggestions is that if you establish a body that (based on applicants' estimations) consistently underprices the value of those licenses, applicants will simply abandon the patent system - and keep their inventions as proprietary trade secrets. No more industry coalitions, no more industry standards like 802.11 and USB and HDMI... every company will make its own protocols, just like back in the 80's. Is that your notion of an ideal computing industry?

        • Congress could.

          If Congress takes the essential H.264 patents from companies in MPEG-LA, these companies will likely plead the Fifth [wikipedia.org] and sue for their "just compensation".

    • Re: (Score:3, Insightful)

      Is GSM a "standard"? This country didn't take a stand in GSM vs CDMA. (Go Capitalism!) However Europe DID, and made GSM a standard.

      If it 'worked' or was better, that's up to debate.

      • by cynyr (703126)
        i doubt that up for much debate, they have more coverage, more consumer freedom and a better selection of phones. so GSM wins.
        • by bhtooefr (649901)

          However, CDMA EVDO was a much smoother and faster rollout, lower handset power consumption than UMTS (IIRC,) and coverage in rural areas tends to be better with CDMA, in any country that provides both CDMA and GSM.

          And, the selection of phones and consumer freedom don't really exist on US GSM carriers, either.

      • by zippthorne (748122) on Sunday May 09, 2010 @02:11PM (#32148394) Journal

        Ironically, CDMA is the technically better standard, since GSM under the hood (at the time) was actually TDMA, a modulation/channel sharing technique known to have significant sideband emission due to the frequent switching. (also CDMA tends to fail gracefully, by steadily increasing the error rate as the channel becomes fuller, rather than simply dropping calls.)

    • Re: (Score:2, Insightful)

      by BlackBloq (702158)
      There are no king makers for standards! They arise from a need in the industry and then they fill a gap. MPEG group didn't say ok all you use this or be fired! Who would care? The MPEG came out as the only format that was there and worked. Go to a trade show, the only computer playing motion video AT ALL back in the day was a computer playing Terminator 2 with a hardware MPEG card showing FULL SCREEN VHS quality! Back then everyone was like woaaaa! Be there and work, fill the need. Then you become a standa
    • by Z00L00K (682162)

      I think that the big issue here is that there are patents provided for small details that often are obvious and can easily be re-invented almost as an afterthought by someone else.

      Effectively the patent system is containing too much noise.

      Then the patent holders of existing patents are often requesting settlements and license fees that aren't really reasonable, which causes some cases to end up in court before a settlement is made.

      And as a general rule - the world is developing at a breakneck speed which me

    • Re: (Score:3, Interesting)

      by Yvanhoe (564877)
      We could use the Washington criterion : an industry-recognized standard is anything that generates enough money to be lobbied as such. There are things that are much loosely define in the law
  • No. Just pay up (Score:2, Insightful)

    by Anonymous Coward

    The world has moved on. People are already playing their x264 videos and sharing their mkvs. This IS the standard for video. My linux-based sammy TV plays the files just fine.

    If you want Linux to play catch-up and odd-man-out yet again and wining about stuff that end-users will never care about like licensing, go on. The world doesn't care about your weirdo software religion and never will. This proposal requires the entire world to change to work. I wouldn't hold my breath for it.

    • Re: (Score:3, Informative)

      by LingNoi (1066278)

      Indeed, Linux and Ubuntu linked in the summary have had H.264 support for years. It's a no brainer for them to pay a license for their OEM distributors to be able to sleep at night. I don't really see that as a "debate" though.

      With regards to codecs like Theora I've tried a couple of times to get encode HD video in it but it always comes out blurry. I've seen videos like the HD Theora video on the big buck bunny website so I know it's possible however there doesn't seem to be much information out there on t

      • Re:No. Just pay up (Score:5, Insightful)

        by peragrin (659227) on Sunday May 09, 2010 @11:47AM (#32147352)

        but you then can't redistribute said videos.

        You buy an HD camera. it records in h.264 The moment you upload it tot he web you are supposed to buy another license for that video. The moment you share that video at your friends house on their TV. You need another license. what's that, you want to transfer that video onto a DVD, that's two more license violations.

        I wish people would stop and read more about the licensing issues of H.264 They are currently generous, but MPEG-LA can literally revoke all licenses and make everyone pay fora separate license to create,view, edits, or distributes H.264 video.

        • Re: (Score:3, Insightful)

          by LingNoi (1066278)

          Your HD camera that records in h.264 has a license, the TV you have that plays h264 has a separate license, the video you upload to the web isn't your problem unless you own the site and over 150,000 people view it in which case you're correct and need to pay for a license however I doubt that case is valid for anyone apart from video sharing websites.

          I find it humorous that you respond with license FUD to my open invitation to educate me on how I can make Theora work as good as H.264. Should I interpret yo

          • Re:No. Just pay up (Score:5, Informative)

            by Svartalf (2997) on Sunday May 09, 2010 @12:19PM (#32147624) Homepage

            Actually, you're not licensed to do it even BEFORE the 150k people viewing it- that's just the threshold at which they have chosen to ENFORCE their IP rights. You technically still need a license for it (Check the licensing details on your gear, even the pro-grade stuff will tell you that you need a separate license for professional uses of the gear. They're not kidding.).

            And stating that it's relevant to video sharing sites- they're an enabler, but YOU are the one on the hook, not they (because there's yet another license THEY have to have to do what they're doing...) and you're still needing that license in addition to the one they're paying.

            As for Theora being better than h.264... No, you'd be right about that. It's on a rough par with MPEG4- VP8's closer to what you're looking for and if rumor's right Theora 2 will be in that space. Having said that, I'd prefer a web (and others...) standard to be something that's utterly unencumbered. All it'd take is for one player to play grab-em like Unisys did with LZW and you owe money all over the place. It could just as easily as not happen with h.264.

            • F.U.D. (Score:5, Informative)

              by westlake (615356) on Sunday May 09, 2010 @03:49PM (#32148928)

              And stating that it's relevant to video sharing sites- they're an enabler, but YOU are the one on the hook, not they (because there's yet another license THEY have to have to do what they're doing...) and you're still needing that license in addition to the one they're paying.

              Shorts under 12 minutes long are royalty free.

              Period.

              Amateur or professional production.

              Free or paid distribution. It doesn't matter.

              Royalties on SALES of disks or downloads are 2% of the retail price or 2 cents a title, whichever is LOWER.

              MPEG LA doesn't give a damn about your wedding videos.

              Subscription services with less than 100,000 paid subscribers are also royalty free. Your "viewer supported" Free Culture magazine on DVD+R is a go.

              Own a cable service or TV station in a market of less than 100,000 households?

              The one time fee for an AVC transmission encoder is $2,500.

              SUMMARY OF AVC/H.264 LICENSE TERMS [mpegla.com]

          • But why should they be entitled to more money if "..over 150,000 people view it in ..."? Other than the license says so? That's the piece of this that really baffles me. Oh, I understand why they would license that way. More money for them. But why should I think that's OK?

        • Re:No. Just pay up (Score:4, Interesting)

          by LetterRip (30937) on Sunday May 09, 2010 @12:22PM (#32147660)

          You buy an HD camera. it records in h.264 The moment you upload it tot he web you are supposed to buy another license for that video. The moment you share that video at your friends house on their TV. You need another license. what's that, you want to transfer that video onto a DVD, that's two more license violations.

          I wish people would stop and read more about the licensing issues of H.264 They are currently generous, but MPEG-LA can literally revoke all licenses and make everyone pay fora separate license to create,view, edits, or distributes H.264 video.

          I've always been curious about this. The patent is obviously required for the creation of the encoding and decoding software. But how can distribution of an already encoded video be in violation of the patent? It doesn't implement the patent, only the results of using the patent. This really needs to be something that the legal basis of needs to be challenged.

          • Re:No. Just pay up (Score:5, Informative)

            by Sancho (17056) * on Sunday May 09, 2010 @12:48PM (#32147862) Homepage

            Exactly. It's like creating furniture with a SawStop table saw and the patent holders expecting to get a cut of everything you make with it.

            You should buy the right to use the patented technology, and that should be the end of it.

            • Re: (Score:3, Insightful)

              by westlake (615356)

              Exactly. It's like creating furniture with a SawStop table saw and the patent holders expecting to get a cut of everything you make with it.
              You should buy the right to use the patented technology, and that should be the end of it.

              MPEG LA is only interested in the big green.

              2 cents a disk is chicken feed unless you are talking $1 million in sales.

              Your state of the art H.264 encoder is - for all practical purposes - free as in beer until you reach that level of success. Can you say the same for the SawStop?

          • I've always been curious about this. The patent is obviously required for the creation of the encoding and decoding software. But how can distribution of an already encoded video be in violation of the patent? It doesn't implement the patent, only the results of using the patent. This really needs to be something that the legal basis of needs to be challenged.

            Well that's the way patent law works. You have a license to do "A", but not "B". If you want to use our property to do "B", you need new permission to do that.

          • by zogger (617870)

            It's completely absurd. I've used an analogy before. Did typewriter manufacturers demand a fee for stuff authors wrote on their machines? They had patents on typewriters. There's your legal precedent, and it gets to the heart of promoting the arts and sciences. These software patents throw a ridiculous roadblock towards that goal.

            Independent and concerned folks should stage a mass protest, video each other at outdoor protest sites, swap one dollar with each other for instant copies of what they shoot, on th

      • Re: (Score:3, Insightful)

        by evilviper (135110)

        how would one convert a clear h.264 HD video to Theora and have it come out with the same quality.

        It's 100% impossible to convert a video into a lossy format and not lose quality. When the video was converted to H.264, quality was lost. When you convert it, AGAIN, to Theora, you will get all the quality loss and artifacts from H.264, and also all the quality loss and artifacts from Theora.

        For "big buck bunny" in particular, you can download the lossless video yourself, and try converting that into Theora

    • End users do not care about licensing costs because it has always been hidden from them. They buy a computer, thinking that the price is for the hardware itself, never being informed that they are also paying for various copyright and patent licenses. If consumers were able to see what they are really paying for, and were presented with real choices (as opposed to the current, "Well, you can have this one low end system with Ubuntu preloaded, or any of these 20 high end systems with Windows"), I think we w
  • by Mindcontrolled (1388007) on Sunday May 09, 2010 @11:32AM (#32147232)
    Is completely clueless trolling in the summary the new standard on /. now? What does the fact of a "standard" being "trademarked" have to do with patent issues? How do you compensate patent holders if you invalidate their patent ex post facto? What "mess the government created"? Holy cow, this summary is a new low. Besides, if the author of the summary explicitly states that "he is not stupid", well, we can pretty sure about his intellectual capacity.
    • Re: (Score:3, Insightful)

      by Vellmont (569020)


      Is completely clueless trolling in the summary the new standard on /. now?

      It's not a summary, and it's not "trolling". The paragraph IS the article, and the links are merely poor background information. Though I do agree that there's no apparent connection between trademarks and patents.

      You might not agree with the article, and it's largely poorly written and poorly supported. But "trolling" isn't the same thing as a bad article. Honestly, when did "trolling" become just a poorly written article? If a

      • Re: (Score:3, Insightful)

        by Blakey Rat (99501)

        The difference between "trolling" and "bad article" is: is it purposefully stupid in order to get outraged replies? Or merely ignorantly stupid.

        Since the author here insists he's not stupid, personally, my first inclination would be to call this trolling as well.

        • by Vellmont (569020)


          The difference between "trolling" and "bad article" is: is it purposefully stupid in order to get outraged replies? Or merely ignorantly stupid.

          Interesting. I might define "trolling" as using language such as "purposefully stupid" or "ignorantly stupid" to describe something.

          Actually I really detest the whole "trolling" meme. It's so incredibly subjective as to have little meaning. It becomes a bludgeon to apply to any idea that might personally enrage you. In other words "I don't have to think about th

      • by Mindcontrolled (1388007) on Sunday May 09, 2010 @12:47PM (#32147848)
        I called it a troll because it is very hard to lead a rational discussion on patent matters at the best of times. The article at issue here uses very loaded language from the beginning - e.g. the "government-created mess". This is designed to incite a flamefest, in my opinion.

        Regardless of the trolling-or-not-issue, the whole topic is half-arsed, not remotely thought through. The questions you are asking are good ones that aim at the heart of the problem. There is a deeper issue, though: What exactly *is* an industry standard for the purpose of this? Who defines it?
        • by Vellmont (569020)


          The article at issue here uses very loaded language from the beginning - e.g. the "government-created mess". This is designed to incite a flamefest, in my opinion.

          I think you're being a bit overly sensitive. It's an opinion piece designed to show a point of view. It's not really any different from your average letter to the editor in a local newspaper. Actually probably a bit better than the average one, since the average one tends to be even more poorly worded and thought out. If you really think this a

    • It seems pretty naive to expect legislation against moneyed interests. They have the campaign donations and lobbyists to push against any bill that would hurt their interests, and they have plenty of money for lawyers to fight any law that gets passed tooth and nail. I really don't see a solution for this.

  • by 0xdeadbeef (28836) on Sunday May 09, 2010 @11:33AM (#32147246) Homepage Journal

    I'm not convinced that industry can solve this mess that government created.

    You people are like children. Mommy, let us do this! Mommy, let us do that! Then things don't work out quite the way you wanted them to. Mommy, it's all your fault!

    • Re: (Score:3, Insightful)

      Actually I think its rather a case of the industry members who are getting left behind want a legislative solution to their problem, at the expensive of the industry members who have gained the advantage of a headstart.
    • Re: (Score:3, Insightful)

      by vyrus128 (747164)

      So you oppose patents, then? Or do you like mommy-granted monopolies, and just start crying when the other children try to get your monopoly taken away? :-P

  • by russlar (1122455)
    Yes, we certainly could declare patents on industry-standards were un-enforcable. But that would deprive a lot of people of a lot of profit, so it will never happen.
  • by Quixotic Raindrop (443129) on Sunday May 09, 2010 @11:35AM (#32147258) Journal
    and eliminate Software Patents entirely.
  • Back in 1988... (Score:5, Interesting)

    by Kupfernigk (1190345) on Sunday May 09, 2010 @11:36AM (#32147268)
    I was in a meeting of our (electrical) industry body discussing how we would work on harmonisation of standards across the EU, with a QC (senior legal counsel) present as adviser. I asked more or less the same question - whether it would be possible to mandate that European law should require that any technology essential to meet a harmonised standard be free of licensing requirements. This would mean that a company making a single product relying on patented technology would only be able to sell it across the EU if the patent was unencumbered by licensing requirements. The reply of learned counsel?

    You're a smartass. Everybody hates a smartass.

    • Re: (Score:3, Interesting)

      by Vellmont (569020)

      Heh.

      Sounds like the lawyer felt threatened by the idea. He probably thought that if such a law were to take effect, there'd be less need for legal council. Thus his dickish reply.

  • by Dragoniz3r (992309) on Sunday May 09, 2010 @11:36AM (#32147270)
    "I'm sorry sir, your idea has become too successful, we're going to have to take it away from you now."

    Is this some sort of joke? This is similar to claiming that is too important to fail, thus the government should take it over and run it "for the people." The real solution is to make sure you can't get patents on trivial algorithms that anyone would come up with, when presented with a particular problem. Not to take away genuinely innovative approaches that just so happen to become popular.
    Yes, it's true that most software patents are trivial. But not all are, and the ones that aren't should be protected just like any other innovation or invention.
    • by loufoque (1400831) on Sunday May 09, 2010 @11:44AM (#32147328)

      Is this some sort of joke? This is similar to claiming that is too important to fail, thus the government should take it over and run it "for the people."

      I don't see it as a joke, on the contrary I find it very sensible.
      I guess it's a matter of political opinion. The government should ensure the best for the people rather than allowing a single company (or consortium) to get royalties for things that have become ubiquitous in today's world, as that is hindering both innovation and regular activity.

      • by Sancho (17056) *

        The Devil's Advocate would say that H.264 would likely not have become ubiquitous if the creators knew that they wouldn't be able to patent it. It almost certainly wouldn't be as open as it is now. Do you think that Linux would have native H.264 playback if the MPEG-LA had to resort to close-sourcing it rather than relying on patents to protect their codec?

        We don't need to get rid of the patents in H.264--what we need is sane licensing. There should be at most two licenses--one covering encoding and one

        • by loufoque (1400831)

          The Devil's Advocate would say that H.264 would likely not have become ubiquitous if the creators knew that they wouldn't be able to patent it.

          You could still patent it and earn royalties, until the point when it becomes ubiquitous.

          From what I can gather myself, as working for the videoconference company that is proposing a likely candidate for H.265, is that they care more about standardizing good codecs and use them in their products.
          Royalties are certainly a nice extra, but it's not the business model dr

    • Instead of invalidating patents, why not just simply say all standards must not be patent encumbered?

      That turns "we're taking your great idea" into "we'll take any great ideas that you don't try to own, lock, stock, and barrel". Everyone knows the real money is always in delivering the solution and maintaining it, not trying to control the idea and own it. Large companies hate this of course, because they know that if they had to compete in a fair marketplace the small shops would eat their lunch since th

    • by rawler (1005089)

      Agreed, with one addition;

      Submarine patents must be addressed. With regards to the question of h.264, the Theora submarine patent-scare is ridiculous, not because it is unrealistic, but because it is a very unsound patent-system that enables that kind of behaviour in the first place. The respectable purpose of patents is to protect inventors, not being used as legal weapons to stifle competition, or economical vampirism, and submarine patents is an obvious example of that.

      Perhaps there should be some news-b

    • "I'm sorry sir, your idea has become too successful, we're going to have to take it away from you now."

      You've got a mistranslation, here. It's more like:

      "I'm sorry sir, you contributed your patented idea to standard X, you're not allowed to use your patent against anyone implementing X."

      or even:

      "I'm sorry sir, you contributed your patented idea to standard X, you're not allowed to use your patent against anyone using the reference implementation of X."

      So, in short, nobody would have the force of the

  • by Registered Coward v2 (447531) on Sunday May 09, 2010 @11:47AM (#32147356)

    More appropriately, when does something transition from a "good idea that is sparsely implemented" to an industry standard? If you set the criteria as "defined by an industry organization" (such as ANSI, ASNE) then why would a company allow patented tech into the standard? Would MILSPEC constitute an industry standard? I think the battle point would just change, with companies wanting larger license fees early because they'd lose them later; which would limit the adoption of a standard. In addition, they would have little incentive to allow free licensing to encourage adoption since there's no money at the other end.

    I'm not sure what the answer is - perhaps a compulsory license fee that is the same for all users of the technology? Of course, then I could charge a high upfront one time fee, rather than a per unit fee, effectively locking out newcomers.

    Of course, eliminating submarine patents would go a long way. If a person has applied for a patent, they should be required to notify a potential infringer when they first notice the infringement, not after the patent being granted. After a certain time limit, the infringer should be grandfathered into non-infringement. If they have been notified, and the patent subsequently is upheld, then the are liable if they failed to modify their infringing item. A separate arbitration board would hear arguments, and if they decide the patent appears to be valid then either they settle or the infringer posts a bond set by the panel. The winner of the eventual suit gets the bond. I would even say that granting the patent, and winning a challenge, would be enough to get the patent holder the bond; since a panel of experts decided the infringement issue earlier but did not rule on the patentability. Alternatively, they could settle both issues at once

  • by laughingcoyote (762272) <barghesthowl.excite@com> on Sunday May 09, 2010 @11:47AM (#32147358) Journal

    I think the sheer complexity of this approach alone would have everything everywhere tied up in litigation for years. That alone is a mark against it.

    Instead, let's use a simpler method, and take away patents from software, methods, or any other intangibles. That will take away the current minefield where almost any nontrivial software is technically in violation of a patent. And it would make sense.

    A brilliant new design for a computer (or a piece of it) can be patented. (Note this means a quantum leap, not an incremental improvement). In the same vein, if you came up with a brilliant new design for a guitar, causing it to weigh 40% less and have a tone quality far better than anything on the market, you could patent that guitar design.

    However, if you came up with some brilliant new chords that this guitar can play, you can't and shouldn't be able to patent those. Even if they're brilliant, even if you're the first to ever play them. You can copyright any songs you write with them, of course. But you can't keep someone else from using the same concept in their own songs.

    Software is the same as the music. It is the unpatentable intangible played on the patentable tangible. You can copyright it, but you should not be able to stop someone from independently create something interoperable.

    • by ArsonSmith (13997)

      (Note this means a quantum leap...

      a leap of the shortest distance possible that has any meaning in physics?

  • by ciaran_o_riordan (662132) on Sunday May 09, 2010 @11:49AM (#32147380) Homepage

    Patent legislation in the USA is very unclear on questions about whether it should apply to software. That's why it's always ignored in the debate, with everyone focussing on the rulings from the CAFC and the Supreme Court. There is good grounds for saying the legislation excludes software ideas, since the Constitution only allows patents where they promote the progress of useful arts - and all the studies say software patents impede such progress.

    A flat exclusion of software from patentability is one solution, and its the best one. Other possibilities include an exclusion of liability when using ideas for the purpose of compatibility. That wouldn't fix all problems, but it would fix the h.264 and other file format problems.

    Related info on en.swpat.org:

  • by sribe (304414) on Sunday May 09, 2010 @11:49AM (#32147384)

    So, basically, your idea is that if a patented "invention" turns out to be really important and useful, the patent should be rendered unenforceable. Yeah, good luck sneaking that proposal through ;-)

  • Oh sure, lets get the government involved in this! Because they're:
    Efficient
    Looking out for the people
    Focused
    Not interested in pork
    Uninfluenced by patent holders
    • by Vellmont (569020)


      Oh sure, lets get the government involved in this! Because they're:
      Efficient
      Looking out for the people
      Focused
      Not interested in pork
      Uninfluenced by patent holders

      And who should be involved in this that meets those criteria, business? If you think business is "efficient", then you haven't looked terribly deeply into business. The other ones I don't even think anyone has any serious beliefs business is any good at. People only accuse government of all the things you describe because we have a big public win

      • by dptalia (804960)
        The honest truth is NOTHING is efficient. And NOTHING is really interested in anything other than collecting as much power as possible/maintaining the status quo.

        I'm merely saying that expecting a solution from the government is silly. So is expecting one from industry.

        However, if over time this truly becomes enough of a problem, the market will end up coming up with a solution. Right now - we're so below critical mass that expecting anything to crystallize out of the chaos is unreasonable.

  • Violation of TRIPS (Score:5, Informative)

    by hweimer (709734) on Sunday May 09, 2010 @12:00PM (#32147456) Homepage

    We could solve the H.264 debate if a country's legislature were to mandate that any patents that contribute to an industry-recognized standard were unenforceable in the application of that standard.

    I have read until here. What you propose is unfortunately not allowed under the TRIPS agreement [wikipedia.org], which requires that once that a patent has been granted, the holder must be able to enforce it. While there can be exceptions to this rule, I highly doubt that a country trying to get rid of the H.264 patents that way will get away with it.

    If a legislative body wants to fight these patents, the best thing it can do is to require the use of unencumbered technologies in the government.

  • No (Score:5, Interesting)

    by Kjella (173770) on Sunday May 09, 2010 @12:01PM (#32147470) Homepage

    I don't think it'll in any way be practical to expropriate that IP, which is essentially what you are talking about. However, that is not the biggest problem with patents. The biggest problem with patents is that a standard is never proven patent free, only that no claim of infringement has been made against it yet. This is why I would like standards bodies to have the ability to call for patents, and any patent claim not made within a reasonable time frame is forfeit as related to that standard. A relevant current example is Theora - they claim it's patent free but is it really? What if someone like ISO or ITU-T could publish the standard, demand that any patent claims must be done within three months and if none were made you knew with 100% certainty that any later claims are null and void? It would be wonderful. I don't see this as a way of freeing IP, but it would go a long way of reducing patent FUD and submarine patents. Even if it should turn out to be patented you know which bits and could work to remove those and try again.

  • Some of the founders were worried that the patent system wouldn't allow enough time for inventions to spread, as America had a much greater land mass than England. That's how out of date this idea is.

    Software patents are totally worthless. All they do is impede progress. Consider a software patent on controlling a lawn mower. You could patent this idea. Could you patent lawnmowers? Of course not - patenting the idea of cutting grass can be laughed off by everyone, except for a few lawyers and jurors in East

  • No to patents, if it gets in the way or makes things tough? Really? Then the value of patents is zero?

    This is not the right argument.

  • Article the seventh [Amendment V]

    No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or proper

  • by ibsteve2u (1184603) on Sunday May 09, 2010 @02:01PM (#32148338)

    I'm not sure that industry can solve this mess that government created."

    I don't know about Australia, but if it has to do with protecting or accumulating wealth - the modern intent of patents - in America, then any associated government mess that has been created in the last 30 years was at the behest of, paid for, and crafted by industry.

    Hence, the average American's and the nation's interests are rarely represented. You only get "messes" when legislation is focused solely on the interests of a few.

  • possible workarounds (Score:3, Interesting)

    by sjames (1099) on Sunday May 09, 2010 @02:02PM (#32148342) Homepage

    There are several factors to the H.264 problem. The problem of patents on standards is hard to legislate away unless the legislature sets the standards. That solution SHOULD be applied to things like the electrical code (where it's a mandate as well as a standard). There are just too many problems waiting if it's applied to mere industry standards.

    Instead, that problem has to be solved by people behaving tastefully and not being idiots, so I suppose I'm saying it won't be solved.

    The second issue is the MPEG-LA's use of FUD to scare others away from more open standards (or at least give them an excuse). THAT can be partially cured by declaring a limited time to sue over a supposed infringement. It's been 10 years for theora. If they haven't found a reason to sue yet, there isn't a valid one. The principle of estoppel applies well here, but the high cost of court could be avoided by writing it into law as a presumption rather than something you have to argue in court.

    Narrowing the scope of patent suits by legally recognizing the right of a buyer to presume that relevant patents have been licensed and so absolving them of any further responsibility would help. For example, if my reasonably anticipated use of a cameras (that is, taking pictures with it for any purpose) violates a licensing agreement, it's the manufacturer and not me who can be sued over it.

    The rest of the problem will require court reforms (sorely needed anyway) to make going to court affordable for mere mortals and reforming the patent office so that it stops rubber stamping everything. Perhaps if a patent is ruled invalid in court, the USPTO should be on the hook for the costs of that court case (since if it had done it's job nobody would have been in court over the patent).

  • by Animats (122034) on Sunday May 09, 2010 @02:10PM (#32148382) Homepage

    ANSI used to have a policy that they would not accept standards which contained patented components. That changed in the 1980s, I think. (The link to ANSI's patent policy [ansi.org] is currently returning the message "Cannot connect to the configuration database. For tips on troubleshooting this error, search for article 823287 in the Microsoft Knowledge Base at http://support.microsoft.com./ [support.microsoft.com]")

    The legal way to address this is to require that standards bodies, from IEEE to ANSI to MPEG-LA, lose their exemption to antitrust law if they promulgate standards which contain patented components. Without that exemption, when companies get together to agree on a standard, it's conspiracy in restraint of trade.

    In general, most of the more annoying patent problems are really antitrust problems. Anyone can get a very narrow patent on a very specific way of doing something. Such a patent is not useful unless the very specific way is a de-facto standard enforced by market dominance. That's an antitrust issue.

    The reason MPEG-LA gets away with this is that the Justice Department signed off on it in 1997. [berkeley.edu] That's consistent with the FTC-DOJ 1995 guidelines [usdoj.gov] in this area. Anyone can buy an MPEG-LA license under stated terms. So they meet the guidelines. The guidelines don't address the issue of the interaction of de-facto standards and market power. They should. That's what needs to be revised.

    For background, here's a speech by an FTC commissioner of the Clinton era [ftc.gov] on this issue. He makes the point that antitrust lawyers and patent lawyers don't talk to each other much and don't understand each other's fields. Also see this Justice Department Antitrust Division talk from 2007 [justice.gov]. If you want to talk intelligently about this issue, you need to read these materials.

  • by the eric conspiracy (20178) on Sunday May 09, 2010 @07:48PM (#32150294)

    So you want to establish a system where if an idea turns out to be really good, so much so that it becomes widely used and an standard, that all of a sudden the inventors lose any ability to make money off the idea and they lose their company and their investments?

    Not exactly what I would pick as a means to encourage people to work or invest in this area.

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