[Asterisk-Users] G.729 licensing/patent?

[Benjamin on Asterisk Mailing Lists]

On Thu, 21 Oct 2004 22:25:33 +0200, Roy Sigurd Karlsbakk
<roy at karlsbakk.net> wrote:
> > exist in many markets, especially most of Europe. Whatever your view
> > on software patents, as soon as you run a G.729 code somewhere you
> > have a physical device infringing those patents.
> 
> How can generic PC hardware be covered by a patent? It's just a piece
> of software, that is, algorithms neatly put together with some control

Don't shoot the messenger! Shoot the law makers instead for having
allowed the patent system to deteriorate. The issue here is not what
we would like to be the applied logic when patents are granted. The
issue is that whatever patents are granted are granted and in force.

To understand patents one must abandon the idealistic-romantic view
many people have about patents. It may help to mentally replace the
word "patent" with the term "registered claim" because that is what a
patent really is. And it further helps to interpret the word "claim"
as in "claim, not proof".

So, let's see what our "new terminology" reveals ...

A patent is a registered claim, as in "claim, not proof". That is, it
is *deemed* to be valid until proven otherwise. Normally, if you claim
something in court you have to proof it first before it is deemed
valid. The burden of proof is with the claimant. Not so with the
registered claim, we call a patent. Once registered, it is deemed
valid until somebody else proofs otherwise. The burden of proof has
moved away from the claimant.

Now you come along and say, fair enough but a PC with some software
remains a general purpose apparatus and is therefore not encumbered by
the registered claim. Normally, the burden of proof would be entirely
with whoever wanted to call you a liar. However, since the registered
claim is deemed valid, the right holder only has to *claim* (here is
that nasty word again) that you are wrong, that this PC you built and
programmed is a special purpose apparatus just like it is claimed by
their registered and deemed valid claim. In practise this means that
at the very least you will share the burden of proof. You cannot lean
back and say "Ah yeah?! proof it!" because they have registered their
claim already and it was deemed valid there and then. Now it is up to
you to proof that your PC is not encumbered by their claim.

Scary? You bet this is scary, but this is the way it is! No amount of
lamenting will change the fact that the patent system is there. No
amount of arguing -- no matter how logically -- will make it go away.

It may also help to understand that patents haven't been invented as a
rational instrument in the first place. They were money extortion
instruments invented for greedy rulers. Somebody could purchase a
letter of patent from a greedy ruler in return for a monopoly on some
particular merchandise. Only when the situation became so bad that no
reasonable economic activity was possible anymore because virtually
everthing was monopolised, only then did those greedy rulers start to
think with a bit of reason and they limited the validity of letters of
patent "only" up to 20 years which after almost 600 years is still the
case today.

Only much later, as a result of the US constitution would patents be
redefined, again with a little more reasoning. Since the need for
queens and kings to make some cash by selling monopolies was going
totally against the grain of the American revolution -- after all this
was all about not paying taxes to some king in some far away island --
they needed a better reason if they were to issue such monopolies.

And in a way, the reason they came up with and the system they drafted
was at the time as ground breaking and idealistic in nature as is open
source and the GPL today. Patents were no longer a way for a king to
extort money from business folk, but it was considered a bargain
between the public domain and inventors. The inventor would get a time
limited monopoly on his invention and the public domain would gain the
knowlegde therein. In other words, the motives are very similar to the
motives behind open source and the GPL. In both cases the ultimate aim
is to enrich the public domain and anything else comes second. In this
respect, the patent system is a very distant ancestor of our open
source movement, as strange as this may seem.

The irony is of course that within 200 years the patent system has
become its own worst enemy getting more and more in the way of what it
was originally created for. It is desperately in need of reform. The
point is however that patents are not to be seen in a strictly
rational sense. They are a bargain, as in "Arabian bazaar bargaining",
so they are not necessarily meant to be all that logical. Hence the
side effects of that bargaining cannot always be explained and argued
with logic. The question you asked, however, assumes that there is a
logic where there isn't meant to be one.

rgds
benjk

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