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Antitrust Law Can Curtail or Trump a Patent - Patent Lesson One, by marbux
Thursday, December 30 2004 @ 07:03 PM EST

I asked marbux, one of Groklaw's retired attorneys, if he would explain a bit more to us about the connection between patents and antitrust law. He will be writing a number of articles, because it is a complex area of law, explaining it piece by piece. It matters that we understand it, because if Microsoft intends to use patents as a weapon against free and open source software, it is prudent to know what weapons the community has in return that it can use.

The law, in my experience, can usually be summed up like this -- what's fair? And the question that is always on the table, particularly now that Microsoft has been found guilty of antitrust violations not only in the US but in Europe as well, is: is it fair for a company like Microsoft to use patents, including standards encumbered by patents, against FOSS for anticompetitive purposes? It doesn't feel fair. But what does the law say? Does it care? Take a look at this, from Atari Games Corp. v. Nintendo of America, Inc., 897 F.2d at 1576:

"The fact that a patent is obtained does not wholly insulate the patent owner from the antitrust laws. When a patent owner uses his patent rights not only as a shield to protect his innovation, but as a sword to eviscerate competition unfairly, that owner may be found to have abused the grant and may become liable for antitrust violations when sufficient power in the relevant market is present."

Hello. Think that information might come in handy one rainy day?

I confess that I have never found patent law rivetingly interesting before, but when I read that, I felt invigorated and intensely relieved. There is something the community can do, even if it doesn't have a patent portfolio. You don't always get to pick your weapons. If Microsoft want to use patents, then patents it is. But isn't it reassuring to know that there is something that can be done, that some pushback is possible? So I'm going to grit my teeth and just force myself to learn all I can about patent and antitrust law.

Here, in the opening article on patent law, the important points marbux makes are: patent rights can be curtailed when asserted for anti-competitive purposes; and there is such a thing as patent misuse. That is my takeaway. Other things may strike you, but I'm sure you can extrapolate as to why those two are relevant in a Microsoft context.

It's possible such a strategy will never be played out, but as the article marbux highlights puts it, when there are more and more patents being granted, eventually there has to be a real food fight:

"As more and more copyrights and patents are issued, more and more 'mini-monopolies' are created. In this crowded room of IP holders, each exercising the power to exclude, toes will eventually get stepped on. At some point, the protection of intellectual property rights produces serious legal quarreling. Perhaps more importantly, it raises the risk that enforcement will stifle that which the IP laws were designed to promote in the first instance: creativity and innovation."

When that point is reached, then what?

"At some point in the spectrum of enforcement of IP rights, the antitrust laws will, and do, surface to preclude certain conduct by IP rights holders."

Let's see what marbux has found in our first installment:

********************************

Antitrust Law Can Curtail or Trump a Patent - Patent Lesson One, by marbux

In the coming days, we'll be looking more and more at the rather fluid boundary between patent and antitrust law, and at the real-world ramifications for any Microsoft effort to squelch free and open source software using software patents. The truly important point is that under U.S. law (and elsewhere), patent rights can be curtailed when asserted for anti-competitive purposes. In other words, antitrust law can limit and even trump patent rights, either defensively when someone is sued, or offensively to challenge blocking patents.

To get you started, here is a fairly short article that gives some snapshots of U.S. case law on that subject. The article was written by an experienced patent-antitrust law litigator, Robert G. Badal, who works for a large law firm on the United States' west coast. It's entitled, “Be Careful What You Ask For: When Enforcement of Intellectual Property Rights Trigger Potential Antitrust Exposure.” That is precisely the area of concern for F/OSS developers and advocates looking at Microsoft's looming software patent portfolio. I suggest reading the entire article, so here are a few excerpts to whet your appetite:

"On the surface, there is a curious paradox in the co-existence of the IP and antitrust regimes – one seeks to promote creation and innovation by granting monopoly-like rights; the other seeks to do so by encouraging aggressive competition and eliminating monopoly power. The Federal Circuit observed this apparent tension in the patent context, but attempted to resolve the conundrum by emphasizing the shared underlying goals of each group of laws: 'the two bodies of law are actually complementary, as both are aimed at encouraging innovation, industry and competition.' Atari Games Corp. v. Nintendo of America, Inc., 897 F.2d 1572, 1576 (Fed. Cir. 1990). . . .

"That antitrust concerns may serve to limit intellectual property rights is hardly a novel concept. For years, antitrust law has provided remedies where a rights owner engaged in what would traditionally be considered anti-competitive conduct in an effort to enlarge the scope of the original IP right. As early as 1917, for example, the Supreme Court addressed the problem of patent misuse when movie projector companies attempted to 'tie' their films to their projectors unlawfully, forcing projector buyers to purchase the companies’ films as well. See Motion Picture Patents Co. v. Universal Film Mfg., 243 U.S. 502 (1917). Later, the Supreme Court went so far as to hold that patent misuse was prima facie evidence of an antitrust violation. See id. (referring to Mercoid Corp. v Mid-Continent Inv. Co., 320 U.S. 661 (1944) (Mercoid I) and Carbice Corp. v. American Patents Dev. Corp., 283 U.S. 27 (1931). . . .

"Employing or altering an interface between two products in a way that is anticompetitive may trigger antitrust exposure, even if one has valid rights in the products and the interface. For example, in Telex Corp. v. IBM Corp., a maker of peripherals for IBM computers alleged that IBM’s frequent changes to the interfaces that allowed peripherals to plug into IBM computers helped IBM to monopolize the market for IBM-compatible peripherals. Although the district court found IBM liable for its interface changes, the Tenth Circuit reversed, because it determined IBM lacked market power. See Telex Corp. v. IBM Corp., 367 F. Supp. 258 (N.D. Okla. 1973), rev’d, 510 F.2d 894 (10th Cir. 1975).

"An interface change that deliberately weakens product performance may be seen as presumptive evidence of an anticompetitive motive. See In re IBM Peripheral EDP Devices, 481 F. Supp. 965, 1007-08 (1979) (finding an IBM interface change degraded its system’s performance and “the only effect of the degradation was the preclusion of competition”), aff'd on other grounds, 698 F.2d 1377, 1382 (9th Cir. 1983). Even there, however, a court will not find liability if it determines the company making the anticompetitive interface change does not have the requisite market power." See id.

If Mr. Badal's article leaves you interested in reading more, you may also find the history of patent law interesting. Apparently the first patent system was developed in Renaissance Italy. See Constitutionalizing Patents: From Venice to Philadelphia [PDF]. You might also enjoy reading a speech [PDF] given at Boston University's School of Law by former FTC Commissioner Mary L. Azcuenaga in 2000 on the subject of antitrust and intellectual property law.

But stay tuned; there's lots more coming about software patents and antitrust law.


  


Antitrust Law Can Curtail or Trump a Patent - Patent Lesson One, by marbux | 246 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Off-Topic Threads Here
Authored by: chrisbrown on Thursday, December 30 2004 @ 07:05 PM EST
n/t

[ Reply to This | # ]

Corrections, if any seem needed
Authored by: Anonymous on Thursday, December 30 2004 @ 07:19 PM EST
 

---
--Bill P, not a lawyer. Question the answers, especially if I give some.

[ Reply to This | # ]

Antitrust Law Can Curtail or Trump a Patent - Patent Lesson One, by marbux
Authored by: lazy on Thursday, December 30 2004 @ 07:49 PM EST
If technology grows exponentially, then so must the
number of patents granted. So probably will too then
the number of IP lawsuits. Perhaps it is only a matter
of time before the courts become paralyzed by excessive
Litigation. It certainly seems that there are more of
these types of lawsuits now than ever before, no?

---
vote with your wallet, not with your hands.

[ Reply to This | # ]

"Anti-Competitive" ??
Authored by: DMF on Thursday, December 30 2004 @ 08:04 PM EST
I raise this issue as Devil's Advocate because SCO has made a similar argument and Microsoft surely will when confronted with the "monopolist is acting anti-competitive again" counterclaim.

Can acting against Free Software be considered anti-competitive? Strictly speaking, Free Software doesn't compete as it has no prospect for profit and so cannot enrich its owners. Free Software is of its nature destructive of the market. It does not capture share; it destroys share. Acting against it primarily preserves the market. The effect on current share positions (to preserve them) is merely accidental.

Seems to me to be a fairly strong arguement in equity and perhaps novel in law. How to counter it in equity and in law?

[ Reply to This | # ]

just curious
Authored by: josmith42 on Thursday, December 30 2004 @ 08:30 PM EST

Who was the monopoly in Atari Games Corp. v. Nintendo of America, Inc., Atari or Nintendo?

---
Forty-two: the answer to the question of life, the universe, and everything.

[ Reply to This | # ]

"Reasonable" terms and Free Software
Authored by: Paul Johnson on Thursday, December 30 2004 @ 09:03 PM EST
First, thanks to Marbux for the article.

Second, I don't think anti-trust law will help much here unless it grants
special recognition to open source.

The strongest remedy I could see in the cases described (apart from criminal
anti-trust prosecution) was a requirement that the patent holder license the
patent on "reasonable" terms. In other words, the patent is not
invalidated by anti-trust use, and the holder can still require license fees
from licensees.

Unfortunately open source software cannot operate effectively in the presence of
such patents. The open source project typically cannot afford a license, and if
per-unit fees are demanded (a "reasonable" term for a license) then
they have no way to collect them. I'm not an expert, but I think that there is
a "contributory infringement" concept in the law that would make the
open source project liable for infringement carried out by others using the
software.

So suppose MS patents the next generation of, say, Word file formats. They
announce that anyone wishing to use these formats must license the patent, and
that a license fee of $1 per copy will be charged, minimum $1,000 per licensee.
This would be considered "reasonable" by a court, given that MS Word
sells for many times $1 and cost many times $1,000 to develop. But Open
Office.org cannot pay the license fee. They may be able to escape contributory
infringement by putting up a prominent notice that any use of this software
requires a license from MS. But it would present a major issue for any
potential user.

Paul.

---
These ideas and others like them can be had for $0.02 each from your friendly
local idealist.

[ Reply to This | # ]

Illegal bundling
Authored by: ws on Thursday, December 30 2004 @ 09:04 PM EST
Hmm, now, if film == "software" and the projector ==
"hardware", then, do the same arguments that were brought
up 87 years ago apply now?

Actually, it would be more gratifying, in a way, to find
that when someone actually filed suit, "the courts
determined that MS lacked market power".

[ Reply to This | # ]

Antitrust Law Can Curtail or Trump a Patent - Patent Lesson One, by marbux
Authored by: Anonymous on Thursday, December 30 2004 @ 09:16 PM EST
This is my first and, most probably, last post here.

Props to PJ.

It's admirable that you're so impassioned by what you're
doing. And that you've succeeded so well thus far is
astounding, IMHO. You've made a FOSS project out of the
legal wranglings of major corporations that affect FOSS
developers. You've made change.

May you end up wealthy and extremely happy.

:)

[ Reply to This | # ]

http://patentbusters.something
Authored by: Gothic`Knight on Thursday, December 30 2004 @ 09:51 PM EST
".... Later, the Supreme Court went so far as to hold that patent misuse
was prima facie evidence of an antitrust violation."

This is interesting enough and reassuring that ultimatetely Microsoft may indeed
not be able to use any of their patents against anyone let alone the FSF/OSS
community. The only issue I can see tho is the cost just getting to court to get
a ruling would still be quite large. Obviously not as large as a fulll blown
trial as I presume such a ruling could be made by the presiding judge without
going to jury trial ( thats a question )

So as usual in will still come down to how much money is available to fight such
litigation as I still believe MS would likely still push things as far as
possible if they see market share eroding.

This time it may be prudent, in the light of the SCO nonsense for those in the
potential firing line to be proactive and with some fanfare as a deterent, setup
a fighting fund now.



[ Reply to This | # ]

Antitrust Law Can Curtail or Trump a Patent - Patent Lesson One, by marbux
Authored by: jim Reiter on Thursday, December 30 2004 @ 09:55 PM EST
It would seem that the Federal Government is the largest purchaser of software
and that they could put an end to patented file types by restricting software
purchases to programs that do not contain file types that require fees and/or
licenses.

I am sure that M$# can find a way to live with this. They would just have to
innovate.

Today there are options.

[ Reply to This | # ]

Can F/OSS be a monopoly
Authored by: Anonymous on Thursday, December 30 2004 @ 10:18 PM EST
If open source software becames the dominant software in a market, will it not
become a monopoly. Just an other stupid question from the crowd.

[ Reply to This | # ]

Another way of looking at it
Authored by: Anonymous on Thursday, December 30 2004 @ 10:41 PM EST
The assumption made in the article and most of the posts seems to be that
antitrust legislation is to protect companies from the monopoly power of other
companies. I always thought that antitrust legislation was to protect consumers
from the power of monopolies.

Patent legislation protects companies. Antitrust legislation protects everybody
else. Taken in that light, it is quite reasonable that antitrust legislation
would protect my right to use open source software. Remember that under patent
legislation, Microsoft can sue me, as an individual, for using software that
violates one of its patents.

I don't think it matters that FOSS isn't a company. It matters that I am a
citizen (consumer, whatever) and in need of protection.

It also seems to me that a patent may be invalidated if it blocks the only way
of doing something. In that regard, it doesn't require antitrust legislation to
protect one from a patent.

[ Reply to This | # ]

Antitrust Law Can Curtail or Trump a Patent - Patent Lesson One, by marbux
Authored by: tknarr on Thursday, December 30 2004 @ 11:22 PM EST

I'm of the opinion that antitrust law may not be the strongest weapon against the current patent system. To date it seems to have been pretty much had it's fangs pulled. I think the patent system itself may turn out to be the best weapon because of a new arrival: the patent holding company. We've seen them, the companies that exist solely to own and license patents, not actually make anything themselves.

Traditionally companies have used patent portfolios for cross-licensing. When someone filed a patent action against them, they dug up a patent they held that that someone was probably infringing and gave that someone a choice between getting hurt just as badly if not worse or cross-licensing and walking away intact. Patent-holding companies aren't susceptible to that defense, they don't make anything to infringe on anyone else's patents so a large patent portfolio doesn't matter when trying to deal with them. As patents and patent-holding companies proliferate, more and more the big companies are going to find themselves at the mercy of an opponent who they simply don't have any leverage on. Combine the cost pressure of patent licenses with the continuous pressure from stockholders to drive down costs to drive up profits and at some point companies that actually make products won't be able to afford not to start pressing to bring some sanity back to the system.

[ Reply to This | # ]

Antitrust Law Can Curtail or Trump a Patent - Patent Lesson One, by marbux
Authored by: blacklight on Friday, December 31 2004 @ 12:35 AM EST
I fully expect the interests that favor pro-software patents to make the straw
man argument that anti-trust law is an effective check on the monopoly effect of
patents. It is probably not, although I wouldn't mind some pro bono lawyer of
the Open Source community file a class action suit against the USPTO for a
pattern of recklessly and improperly awarding software patents and thus creating
the kind of unfair competititive environment that anti-trust law is meant to
address.

[ Reply to This | # ]

Antitrust Law Can Curtail or Trump a Patent - Patent Lesson One, by marbux
Authored by: Anonymous on Friday, December 31 2004 @ 12:45 AM EST
"An interface change that deliberately weakens product performance may be seen as presumptive evidence of an anticompetitive motive."

This has been a well-known MS trick which Novell will (or should) use in their WordPerfect lawsuit. This trick was summarized in the famous (did they really say it, though?) quote, "The job ain't done until Lotus won't run."

Tom Mathews. Someday I'll create an account.

[ Reply to This | # ]

Competition?!?
Authored by: tyche on Friday, December 31 2004 @ 01:00 AM EST
I've got to take a crack at this, from the perspective of a parent (and grand
parent).

Competition is NOT just about money. If it were, parents would end up owing
their children millions of dollars (or the currency of your choice) by the time
they were of age. Just off the top of my head, let me give you an example.

When my son was about 14, he took a self-defense course from a karate academy.
I became somewhat interested (only partly because it's good practice to take an
interest in what your children are doing) and signed up for the next series.
The classes were held with the regular karate students (one of which my son
became), and eventually we ended up paired against eachother by mutual consent.
What we did was not for money, but it was definitely competitive, to the point
where 3 or 4 classes were somewhat disrupted by watching us to find out what the
outcome would be. (No bets were laid, either.) We had a great deal of fun
trying to out-do eachother, but eventually stopped when the self-defense course
ran out. A couple of years later I wouldn't have dared to go up against my son,
even in fun. He topped me by a head and out-massed me by nearly 100 pounds, had
reach commensurate with his size and bulk, and was at that age were winning was
important to him. I like my face just as it is, thank you.

There are a number of much more complex examples that I'm sure others could
make. My point is simply that any time competition is equated with money, the
equation is a falacy. Microsoft and TSCOG have both equated competition with
money. Microsoft and TSCOG are both arguing a falacy. The spirit with which
programmers offer software under the GPL (or any other "free" license)
is the same sort of competition that my son and I experienced, to our mutual
enjoyment, those many years ago.

Craig
Tyche

---
"The greatest enemy of knowledge is not ignorance, it is the illusion of
knowledge."
Stephen Hawking

[ Reply to This | # ]

Well, MS is pulling strings behind SCO but they aren't being stopped by antitrust laws
Authored by: boban on Friday, December 31 2004 @ 03:06 AM EST
If MS was doing what SCO is, they would probably cause themselves problems with
antitrust laws. So they are using a puppet to do the dirty work - it's the only
way this whole sco saga makes sense.

So, if they were to use some other company, like "Intelectual
Ventures", to launch attacks on unwanted competition, I'm sure they would
be as severely punished for it as much as they are now - not at all.

Boban.

[ Reply to This | # ]

Can't be relied on - particularly outside US.
Authored by: Anonymous on Friday, December 31 2004 @ 03:27 AM EST
The assumption that anti-trust laws trump patents cannot
be relied on,
particularly outside the US. Microsoft will
simply pull strings with the US
government and start trade
retaliation against any country that attempts to do
this.
Even if some form of restriction is placed on Microsoft
re. patents,
Microsoft will still be able to abuse the
system sufficiently to kill any
competition, as it has
been doing since it's conviction for anti-trust crimes
by
the DOJ.

Also Microsoft is not the only company that will abuse
patents
to prevent competition and kill innovation. With
software patents, you don't
need to have a monopoly to do
this - the patents are a form of monopoly - one
that
exists for 20 years.

The only way to deal with software patents in a
fair and
just way is to ban them explicitly, and only allow
electrical and
mechanical device patents implemented in
software to be issued in the same
format as they are now
but allowing the function that the software implemented
substiture for an electrical or mechanical component to be
described in
functional terms. In addition to disallow
patenting of software, such a patent
should only be
granted as part of a specific electrical and mechanical
system
patent (with the normal rules nor novelty and
obviousness applying as for
electrical and mechanical
patents) and the patent protection for the component
embodied in software should not be enforcable for code on
its own or use of
the code in general purpose computing
devices, and use of code loadable into
RAM, Flash memory,
non-chip-embedded ROM chips etc. should be excluded and
unprotectable by the patent since this would allow
software to effectively be
patented.

A lot of careful thought needs to go into the wording of
such
device patent laws allowing software implemented
components, before they are
put in place. I would suggest
a start is to explicitly ban and invalidate all
software
code, protocols, data formats and encoding formats,
algorithms,
encryption methods and mathematical and
scientific principles from being
patented as they were
earlier. These are wrong in principle should simply not
be
patentable.

[ Reply to This | # ]

The Market and Money
Authored by: davcefai on Friday, December 31 2004 @ 04:50 AM EST
The Market is composed of buyers and sellers. It seems that only the sellers are
considered when the market is discussed. Apart from all other considerations,
when somebody uses FOSS software he is not paying out money, other than
voluntary donations.

In the light of this "anti-competiveness" applies to FOSS. The
customer suffers by anti-competition. $0.00 is a price as well as $349.95 or
whatever MS are charging for their bloatware.

In some ways one can equate FOSS with DIY. When I paint a room I am not paying a
painter. Will House Painters unite to fight DIY painters? Or will they offer a
decent service (arrive on time, not make a mess, not charge the earth...) in
order to compete?

[ Reply to This | # ]

  • The Market and Money - Authored by: John Hasler on Friday, December 31 2004 @ 09:54 AM EST
    • DIY - Authored by: Anonymous on Friday, December 31 2004 @ 10:19 AM EST
      • DIY - Authored by: John Hasler on Friday, December 31 2004 @ 01:04 PM EST
        • DIY - Authored by: Anonymous on Saturday, January 01 2005 @ 11:55 AM EST
    • Not just Trade Unions! - Authored by: jog on Friday, December 31 2004 @ 11:21 AM EST
Patent Warfare?
Authored by: rm6990 on Friday, December 31 2004 @ 05:25 AM EST
I personally don't think the patent threat is that great.

If Microsoft started a war by sueing over 50 patents they own all at once, the
courts would most likely not be impressed with them. As F/OSS, and the companies
that support it, are Microsoft's biggest competitors, it would most likely be
seen as an anti-competetive action. The courts would realize that Microsoft is
just using its massive patent portfolio (containing a lot of patents that
shouldn't have been granted) to extinguish competition and remain a monopoly
power.

Because of this, Microsoft would probably only sue over a handful of patents,
and in this case, Red Hat, Novell, IBM and all the other open source companies
have the money required to defend the software that is vital to their Linux
businesses.

Also, IBM and to a lesser extent Novell have their own patent portfolios and Red
Hat has begun building theirs. These patents (espescially IBM's) could be used
against Microsoft. Think of them as nuclear missiles. If Microsoft starts firing
theirs off, chances are some more are gonna come flying right back at Microsoft.
The other side isn't going to just sit there and do nothing.

Also, companies like IBM and Microsoft make money cross-licensing patents.
Should they attack the F/OSS community, they risk having sites like Groklaw
finding prior art and having these patents invalidated. If they are losing large
amounts of their patents, they have less bargaining power when it comes to
industry heavyweights like IBM. One flaw of this reasoning however is that it
costs money to have a patent invalidated. Approximately how much does it cost?

[ Reply to This | # ]

Antitrust Law Can Curtail or Trump a Patent - Patent Lesson One, by marbux
Authored by: Gothic`Knight on Friday, December 31 2004 @ 06:19 AM EST
OK, I put my bit in on the Monopolist vs World and its pretty certain from the
answers I've seen here that Mafia.com cant prevail in a patent disipute.

lets move on. How do we deal with an Eolas (or a Mafia.com paid proxy) without
paying the piper. Mafia.com couldn't.

Fighting funds are for fighting! Wouldn't it be better to be on the frontfoot?

[ Reply to This | # ]

The Law is a Human Institution - "O Brother Where Art Thou"
Authored by: Anonymous on Friday, December 31 2004 @ 10:22 AM EST

While a good legal mind and good research will turn up precedent where the law has been written and has been used to promote competition, these laws are not constitutional. In fact, I think they were written around 1900 as part of a populist/progressive point of agreement. (And in response to the excesses of the Gilded Age. Railroad regulation and "common carrier" laws were motivated in part so as to reduce the barriers of entry for farmers to bring commodities to market.) The sense I get from the people who are running the US government these days is that anti-trust law is "outdated thinking" and on their hit list. I wish I could be more precise in citations. But, if you think about the consequences of the "Ownership Society" or privatizing that the Administration is promoting and some of the first policy/law changes on the deck, you'll see that it's about destroying the commons. Because, when one believes the fundamentals of the ownership society ideology, one believes that value is not created unless property is owned and maintained for private interests, therefore the commons is lost opportunity and lost value.

Another tenet is that the market fixes everything. "Natural" monopolies are untenable and will be corrected. Governments, through control, make the market less efficient. Therefore, there is no need for laws regarding competition and, it is argued, such laws interefere with the market's efficiency and provide the opposite effect when viewed over the long run. (Mind you, this is an argument for the elimination of patents as well, but I don't expect we'll hear a peep about that, instead we'll see more and more conflation of ideas into property, when ideas are the natural commons.)

Be on guard for "reform" of anti-trust law, either by legislation or through enforcement practices.

[ Reply to This | # ]

Antitrust Law Can Curtail or Trump a Patent - Patent Lesson One, by marbux
Authored by: Anonymous on Friday, December 31 2004 @ 10:34 AM EST
Unlike PJ as someone with an economics background I find the conflict inherent in patent and anttrust law completely facinating. This is very complex legal and economic issue. I know that I am not the only such visitor to this site.

Most lawyers that I know are very unfamiliar with the analysis of monopoly/dupoly/oligopoly models - and to be entirely fair I cant blame them. The mathematics can be bewildering. There are some universities that offer courses that recognise this need and offer degree courses in law and economics.

I for one found the article by Marbux and the references (especially the historical one on Venice) therein facinating. Since several of the articles refered to various US Supreme and lower court decisions I have most of them them linked below in case anyone else might like to read them.

Hopefully there will be more material like this on GL at least occasionally.

Notes to antitrust

Clay ton Act

US Supreme Court guidance on antitrust indicates four factors are to be considered

1. control of the essential facility by a monopolist

2. a competitor’s inability practically or reasonably to duplicate the essential facility

3. the denial of the use of the facility to a competitor

4. the feasibility of providing the facility.

If these factors can be shown, a defendant may be required to provide access to the facility on reasonable terms.

A defendant that dominates a market may even be forced to continue to deal with a competitor where its sudden refusal to do so would effectively drive the competitor out of business.

The above is from the Supreme Court's Aspen decision. IMHO this looks very applicable to problems of patenting file formats.

MCI Comm. Corp. v. AT&T, 708 F.2d 1081, 1132-1133 (7th Cir. 1983)

Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585 (1985)

Walker Process Equipment v. Food Machinery & Chemical, 382 U.S. 172 (1965).

In re IBM Peripheral EDP Devices, 481 F. Supp. 965, 1007-08 (1979)

Image Technical Services v. Eastman Kodak, 125 F.3d 1195 (9th Cir. 1997)

Carbice Corp. v. American Patents Dev. Corp., 283 U.S. 27, 34 (1931)

Jefferson Parish Hospital District No. 2 v. Hyde, 466 U.S. 2, 12-18 (1984)

Eastman Kodak Co. v. Image Technical Services, Inc., 504 U.S. 451, 461-62 (1992)

United States v. United States Gypsum Co., 333 U.S. 364 (1948)

Palmer v. BRG of Georgia, 498 U.S. 46 (1990)

Intergraph Corp. v. Intel Corp., 195 F.3d 1346 (Fed. Cir. 1999).

--

MadScientist

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Common carrier?
Authored by: Anonymous on Friday, December 31 2004 @ 12:00 PM EST
Could common carrier legislation be used to thwart patents which attempt to
limit access to the internet?

I'm really hazy on this but someone will remember when the telephone companies
were forced to allow customers to connect their own equipment to the system.
Access to the internet seems similar. I can see Microsoft trying to get
something like 'trusted computing' entrenched and using it to impede linux. The
idea reminds me of Bell's 'standards' which they used to keep customer equipment
from connecting to their network.

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Reasonable And Non-Discriminatory Licenses
Authored by: John Hasler on Friday, December 31 2004 @ 12:43 PM EST
Microsoft (or worse, EOLAS) may hold valid and enforceable patents that Linux
infringes. They may offer to license those patents to all comers under
reasonable and non-discriminatory terms, thus avoiding antitrust problems. What
is our defense?

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Antitrust Law Can Curtail or Trump a Patent - Patent Lesson One, by marbux
Authored by: rm6990 on Friday, December 31 2004 @ 06:08 PM EST
Does anyone know where one can find Richard Stallman's lectures on the danger of
software patents? I had them on my computer a long time ago, and thought they
were the best anti-patent lectures I had ever heard.

Oh, and for anyone who thinks RMS is just a free software fanatic and think he
is nuts, download and listen to the longer lecture conducted in Europe. He talks
about the danger it poses not only to free software, but to the entire software
industry. He actually speaks very little about free software, and the few times
he does, it is nothing about the philosophy and more about times that patents
have caused problems with software being produced at the fsf.

Near the end of the lecture, someone speaks of a law someone had drafted in
Austrailia (it may have been some other country, not entirely sure) preventing
patent infringement suits against Free Software. RMS' reply was basicially this
(paraphrased of course):

"On a day with my free software hat on, I would say this is an excellent
solution. But today my purpose is to fight the evils of software patents, not to
promote the use of free software. While that would help ensure the continued
success of free software, it really doesn't solve any of the issues I have
brought up today. Basicially, it is not enough."

In other words, proprietary software vendors shouldn't have to deal with this
crap either.

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IP rights ?
Authored by: Leccy on Friday, December 31 2004 @ 08:44 PM EST
Here is a simple question.
What IP rights do US companies have on something I write (I'm not in the USA)
and contribute to an open source project?

I can see the possibility that it might not be able to be included.... even
though IP rights don't affect me.

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