S3 texture compression patent

[Geoff Thorpe]

On October 17, 2003 11:56 am, Mike Hearn wrote:
> In future please do not raise patents on this list. What we don't know,
> can't hurt us (as much).

IANAL, but I beg to differ.

First, Wine should be reasonably well protected against patent 
infringement, because (and I mean this in the nicest way possible) it 
doesn't actually *do* very much that could infringe. What I mean to say 
is that the API implementation is largely a compatibility shim between 
win32 applications and native APIs on the host platform. As was mentioned 
in the texture case, *wherever* the potentially infringing action takes 
place, it is almost certainly not in Wine itself - and moreover, if the 
user/host/customer/whatever has a legal right to that functionality and 
patented behaviour, then Wine shimming those calls on should be perfectly 
legal. Likewise, shimming those calls on to unlicensed implementations 
represents a violation of the user, in that he/she has enabled behaviour 
on their platform (that Wine duly abides by) that they have no legal 
entitlement to. Whatever, I think patent law (in the US particularly) is 
a giant pigopolist sham, but it shouldn't be Wine's business to feel the 
need for online lookups or other "out of band" (eg. configuration) 
assurances to check whether the host implementations, drivers, and 
what-not are legit.

Secondly, in any rare instance where Wine itself *might* infringe on 
patents, the best course of action is to force the worms out of the 
intestines. Erm, or should I say "woodwork"? Getting an appropriate 
metaphor for IP lawyers is a tricksie affair at the best of times. Patent 
holders, for better or worse, must enforce their IP for it to remain 
valid. Hidden and intentionally undiscussed issues in the Wine source can 
be justification for patent holders to lurk and not spring surprises 
until much later on, under the guise that they can not act on IP 
violations until they *know* about them. Look at the shambles with 
SCO<-->Linux - it seems that the one evidential string in SCO's bow after 
all the years of open/public development on linux is that Linus stated 
publically that he, almost in the same words as you, "prefers not to 
know". The recent Wired article has some references to this, FWIW.

IMHO, you're better to code, discuss, and even publicise such things. 
Hell, if you're not sure about the IP coverage on something you're doing 
viz-a-viz some dubious patent or other, consider mailing the party 
concerned with a CC to the public list (and perhaps a CC to FSF-legal 
too). The hardest problem of IP law to overcome is that the mere fear of 
patent infringement stifles development and competition, irrespective of 
whether the suspected infringement has any firm footing or not. I suspect 
that in many cases, patent holders fear the expense and bad press of 
enforcing their tenuous claims and would rather maintain an unchallenged 
advantage because others say and do nothing. IP law is the modern 
protection racket, and IP-hoarders know it. Moreover, the principle of 
"balance" in IP law is the ever-present risk of patents being invalidated 
should the matter be openly discussed and disruptive issues such as 
prior-art be introduced, but "preferring to not discuss it" robs you of 
this counterbalance. Bear in mind also that in the US, IIRC (and again, 
IANAL), the patent holder has one year from the time they are aware of 
potential infringement to when it becomes too late for them to 
pursue/enforce it. More or less, IANAL, IMHO, just my $0.02, and various 
other hand-waving caveats are assumed. Of course, clarifications of this 
from any qualified opinions are most welcome.

Cheers,
Geoff

-- 
Geoff Thorpe
geoff at geoffthorpe.net
http://www.geoffthorpe.net/