Quote: Patents on copyrighted software allow neither.

Let's look at RenderMan as an example. The RenderMan name is trademarked. The RenderMan application and the RI/RIB specifications are copyrighted. The stochastic sampling algorithm it uses is patented

. Here you have a case of "patented copyrighted software" if I understand your argument correctly.

Nothing prevents you from writing your own rendering application and sell it. In fact, you will find the market offers many competing products already.

-cb

or at least it was not so long ago, but let's assume it is still valid for the sake of the argument.

Quote: Original post by cbenoi1

Quote: Patents on copyrighted software allow neither.

Let's look at RenderMan as an example. The RenderMan name is trademarked. The RenderMan application and the RI/RIB specifications are copyrighted. The stochastic sampling algorithm it uses is patented

. Here you have a case of "patented copyrighted software" if I understand your argument correctly.

Nothing prevents you from writing your own rendering application and sell it. In fact, you will find the market offers many competing products already.

So you've found an example where the patent does not prevent one from making a competing application. Well done.

But there are many cases where it is effectively impossible to make a competing application because the patent could cover all possible competing applications. Return to my MPEG example. There is, realistically, no competing format for the "DV home cinema" market. You can't create something to play a DVD without violating any number of patents which cover the decoding of the various components of the MPEG format.

Your only option is to create a device for playing an entirely different format which doesn't use MPEG. But there is no such digital video format in widespread use: your potential consumers would most likely have to buy their content directly from you, and that would entail getting permission to distribute the content in your proprietary format, which would be hard to get from the major distributors.

Additionally, whilst one can write an application without violating known patents, such as the patents which apply to RenderMan, one cannot be certain that the application does not violate patents you aren't aware of. As I noted earlier, Ogg isn't known to be free from patents, it's merely free from known patents. If one company can convince a court that it owns a patent which covers Ogg, then it's game over for Xiph.

In the US in particular, it's even worse: Because patents are valid from the date of application rather than the date of grant, somebody who has acquired a patent on a technique you've used can sue you for licensing fees 'owed' for the time between application and grant, when you couldn't possibly have known about the patent.

Quote: So you've found an example where the patent does not prevent one from making a competing application.

And I didn't had to go very far, to be honest. I picked an often cited one. Sander's point was that you cannot possibly create a similar software application if it was both copyrighted and patented. Unless I misunderstood his argument, I just found one that disproves his point. But I'm still interested in a real-world example of a case where you cannot make a competing product.

Quote: Your only option is to create a device for playing an entirely different format which doesn't use MPEG.

You will need very deep pockets to build the manufacturing capabilities and garner the content provider relationships to build *any* such device, regardless if you have patent litigation issues or not. But it's feasible. Some companies are even willing to invest big money to avoid someone else's technology and build something equivalent. Doesn't this sound like the Betamax vs VHS battle waaaay back when? Or the more recent Blu-Ray vs HD-DVD battle?

Quote: And that is why in the current patent landgrab everybody tries to be as vague as possible on 2

Can't disagree here; that's the nature of the system. The software patent system is in an early stage. It's like the Oklahoma Land Rush of 1889. The good news is that in 20 years, all those irritating patents will be gone. It will most likely take more than that to change the system anyway.

Quote: somebody who has acquired a patent on a technique you've used can sue you for licensing fees 'owed' for the time between application and grant, when you couldn't possibly have known about the patent.

I was involved in such a case and the patent holder had to retract. Patent holders can sue, but winning is not automatic in that sort of case.

-cb

Quote: Original post by cbenoi1

Quote: Patents on copyrighted software allow neither.

Let's look at RenderMan as an example. The RenderMan name is trademarked. The RenderMan application and the RI/RIB specifications are copyrighted. The stochastic sampling algorithm it uses is patented

. Here you have a case of "patented copyrighted software" if I understand your argument correctly.

Nothing prevents you from writing your own rendering application and sell it. In fact, you will find the market offers many competing products already.

I am prevented from:
1) using the patented algorithm in a field totally unrelated to 3D rendering (because of copyright)
2) independently creating a similar algorithm and build a renderer with it (because of the patent)

Every other copyrighted work allows me to independently create a similar work
Every other patent allows me to use it outside the scope of the patent (a good patent having a narrow scope, not the landgrab patents of late)

So, the patented and copyrighted algorithm is locked away in RenderMan, and the only reason is the double protection on it.

Quote: I am prevented from:
1) using the patented algorithm in a field totally unrelated to 3D rendering (because of copyright)
2) independently creating a similar algorithm and build a renderer with it (because of the patent)

1) I can build and sell a camera lens design application using Pixar's stochastic sampling algorithm. In fact, a friend of mind has done just that a few years back. The application doesn't generate CG images, but lens positions and curvatures.
2) I can write a raytracer that uses Halton sequences instead of purely random samples. The images don't look as nice with the same amount of rays but given enough samples per pixel you can go a long way in image quality.

I do not believe there exist a case where someone is completely locked out. At worst, it takes a big pile of money to circumvent whatever roadblock is in front of you. The MPEG case given above illustrates that.

Quote: 1) using the patented algorithm in a field totally unrelated to 3D rendering (because of copyright)

I think you meant "using the *copyrighted* algorithm. You can copyright the source code, but not the inherent method. Copyrights do not protect methods, just the expression. I can still implement stochastic sampling in a different way than Pixar does. It may not yield mathematically identical results, but that's not warranted in this case.

-cb

Quote: Original post by cbenoi1

Quote: Your only option is to create a device for playing an entirely different format which doesn't use MPEG.

You will need very deep pockets to build the manufacturing capabilities and garner the content provider relationships to build *any* such device, regardless if you have patent litigation issues or not.

Content provider relationships? If you were allowed to build a DVD player without paying any patent fees, you wouldn't need any content provider relationships; the users of your player would simply use perfectly normal DVDs.

It's certainly true that physically building a DVD player is not an trivial task. But consider that you could bulk buy somebody else's DVD player, install your own player software and put a customized cheap plastic facade on the front. This would potentially be quite cheap, relatively speaking, if it weren't for all the licensing fees involved.

You've really highlighted the very point I was making. If you are willing to pay the licensing fees, you can customize generic DVD players and come up with a sellable product quite cheaply. If you are not, you can take your generic DVD players and turn them into incompatible lumps of plastic that you can't sell.

Quote:
But it's feasible. Some companies are even willing to invest big money to avoid someone else's technology and build something equivalent. Doesn't this sound like the Betamax vs VHS battle waaaay back when? Or the more recent Blu-Ray vs HD-DVD battle?

Not really. Both Blu-ray and HD-DVD use MPEG -- or Microsoft' VC-1, which is derived from MPEG and likely covered by many of the same patents -- so they'll both be paying license fees to the owners of patents on the MPEG formats.

Of course, the large companies often won't, since they have cross-licensing agreements with each other. They can use algorithms patented by each other without fear of reprisals, but small companies, who generally have no interesting patent licenses to offer the giants, will mot likely have to pay license fees or risk legal action when developing competing products.

Bare in mind that there are many more digital video patents than just those which apply to MPEG. Many of those patents, which cover a variety of possible competing products, are owned by those companies which currently sell MPEG-based products.

Quote:

Quote: somebody who has acquired a patent on a technique you've used can sue you for licensing fees 'owed' for the time between application and grant, when you couldn't possibly have known about the patent.

I was involved in such a case and the patent holder had to retract. Patent holders can sue, but winning is not automatic in that sort of case.

You will need very deep pockets to survive such a case against a large company. More likely you'll be forced to accept a settlement because you can't afford to defend yourself, even if you knew you'd win.

Quote: Original post by Sander
I am prevented from:
1) using the patented algorithm in a field totally unrelated to 3D rendering (because of copyright)

But copyrights don't cover algorithms, only particular concrete expressions of algorithms. If you're prevented from using the algorithm outside of the field of 3D rendering, it's because because of a (probably overly broad) patent.

Quote: Original post by Sander

2) independently creating a similar algorithm and build a renderer with it (because of the patent)

Its my understanding that this is what patents are intended to protect and its my opinion that this is perfectly ok. That's where the non-obvious part of patents comes in, to prevent people from patenting anything. I'll agree that there are some software patents out there that just plain old stink, I don't think anyone would disagree with that:)

If several companies are trying to develope the same thing and one of them gets there first then that's their reward for doing something quicker than the others.

Cheers
Chris

Quote: Original post by chollida1
If several companies are trying to develope the same thing and one of them gets there first then that's their reward for doing something quicker than the others.

The constitutional purpose of patents is not to provide a 'reward' for getting your application into the patent office before the other guy. The constitutional purpose of patents is to promote the progress of science and useful arts. Without an amendment to change the constitutional purpose of patent law, the only way to judge whether or not patents are doing what they should be doing is to examine whether or not they promote the progress of science and useful arts, not whether they 'reward' inventors who live nearer the patent office.

patents are in the constitution?? I don't think so:) But I think I get your point.
I'm basing this off the us patent office:

The right conferred by the patent grant is, in the language of the statute and of the grant itself, “the right to exclude others from making, using, offering for sale, or selling” the invention in the United States or “importing” the invention into the United States. What is granted is not the right to make, use, offer for sale, sell or import, but the right to exclude others from making, using, offering for sale, selling or importing the invention. Once a patent is issued, the patentee must enforce the patent without aid of the USPTO.


Sounds like the USPTO agree's with me:)

Cheers
Chris

Quote: Original post by chollida1
If several companies are trying to develope the same thing and one of them gets there first then that's their reward for doing something quicker than the others.

No. If several companies are trying to develop the same thing then any patent application should denied because if fails the non-obviousness test.

Quote:

Quote:
I am prevented from:
1) using the patented algorithm in a field totally unrelated to 3D rendering (because of copyright)

But copyrights don't cover algorithms, only particular concrete expressions of algorithms. If you're prevented from using the algorithm outside of the field of 3D rendering, it's because because of a (probably overly broad) patent.

You don't get my point :-) If the algorithm was only coverered by a patent then I would be able to directly use the algorithm (because the code would be public domain). I would not have to take the trouble to come up with my own solution.