Re: GPL'ed Patent Pool

[Maciej Stachowiak <mjs noisehavoc org>]

On 13Sep2004 09:52PM (-0500), Linas Vepstas wrote:
>
> See where I'm trying to go?  Now suppose that I'd acquired the
> rights to "my patent" not by purchase, but through a
> contract/license from RedHat.  Oh, by the way, RedHat has licensed
> this patent to all GPL'ed software developers; but that, I hope, is
> immaterial.  I, as the author of gnome-foo, suffer damages when
> Company X infringes on "my patent".  (I am suffering because
> gnome-foo no looses has a competitive advantage over company X's
> product when X infringes on "my patent".)

You can't normally sue someone for infringing a patent to which you
have a non-exclusive license. So the "mutually assured destruction"
defense would not work.

In order to provide this kind of defense, a defensive patent pool
would have to specifically allow you to make counterclaim lawsuits
based on the pool patents if you participate in the pool. And if it
does so, it may as well let you use the whole portfolio, and not just
patents you happen to use.

> There is one catch with the above scenario, and its a big one: 
> the defense works only if company X is infringing on "my patent",
> as implemented in gnome-foo. 

There's no such thing on "infringing on a patent as implemented in
X". You either infringe on the patent or you don't.

> The fact that company X is probably infringing on *some* GPL'ed
> patent is not enough to save me; I can't threaten them with these
> other infringements because I'm not damaged by them (right?).

Patent infringement actually has nothing to do with damages. Just
being the owner of the patent is sufficient, and, barring some kind of
special agreement, necessary.


Regards,
Maciej