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Years ago, I spoke with an attorney with a CS background. He had once worked on a case like this. Sharp guy. He didn't tell me the parties involved, and I di
by amalcon 9y ago
Years ago, I spoke with an attorney with a CS background. He had once worked on a case like this. Sharp guy. He didn't tell me the parties involved, and I didn't ask, though I assume he wouldn't speak openly about it while it was ongoing. I therefore don't know how it turned out. It was many years ago, so I might be remembering wrong. I'm not a lawyer, this is not legal advice (neither mine nor his).
Basically, there are two approaches the plaintiff might take here. The simplest is to cite the doctrine of equivalents[1]. This is basically the notion that if you do the same thing in the same way for the same purpose, then it's the same process, even though you are using digital instructions instead of logic gates. The legal theory here is pretty well settled. The problem is that you'd need to justify that digital instructions are obviously equivalent to logic gates, and a skilled professional would have equated them at the time of the patent's filing.
The other approach is to argue that an emulator actually is a processor, and therefore fits the literal claims of the patent. The explanation for this is pretty well-established: it's literally the Church-Turing Thesis[2]. However, the viability of this argument depends on the language of the patent claims. Also, it's hard enough to explain the C-T Thesis to CS students. My undergrad had an entire 1-credit-equivalent course that basically just covered this and the decidability problem. Explaining it to a judge, who (while likely highly intelligent) probably has no CS background, over the course of litigation is likely to be really hard.
Now, Intel certainly has enough resources to do both of these things (and they may also have precedent to cite, that didn't exist back then or that wasn't relevant to that case). Don't take this as an opinion on any possible result, it's just information such as I remember it.
[1]- https://en.wikipedia.org/wiki/Doctrine_of_equivalents https://en.wikipedia.org/wiki/Doctrine_of_equivalents
[2]- https://en.wikipedia.org/wiki/Church%E2%80%93Turing_thesis https://en.wikipedia.org/wiki/Church%E2%80%93Turing_thesis
- yuhong 9y agoOne patent is https://patents.google.com/patent/US6721866B2 https://patents.google.com/patent/US6721866B2 which is for LDDQU and probably would not matter for an emulator. I wonder about https://patents.google.com/patent/US7155601B2/en https://patents.google.com/patent/US7155601B2/en which is a patent on PSHUFLW/PSHUFHW. I wonder if a CPU instruction in which the only difference is that it operates on different registers is patentable.
- ouid 9y agoif it's Church Turing you're arguing, then Intel surely doesn't hold the patent on the whole equivalence class...
- amalcon 9y agoThe argument is that anything with that equivalence is a processor, which means an emulator is a processor, which means that any patent thats mentions the word "processor" (or equivalent) covers the emulator if it would cover the emulated device. The argument is not that the patent covers all processors.
- ouid 9y agothat's not the church turing thesis then.
- amalcon 9y agoYou're right that it expands upon the C-T thesis a bit, so my use of the word "literally" was incorrect. It does depend on the C-T thesis though, because it relies on a definition of "processor" that references it. You'd still need to explain it to a judge.
- ouid 9y agoWhat do you mean when you say "expands upon"? Either all computers are equivalent or you aren't invoking C-T.
- kpil 9y agoI guess you could also try to use the Church-Turing teorem in a claim that no instruction level patent are enforceable, since they are all equivalent... But this is logic bordering to philosophy, which isn't exactly what the courts love to argue about. They look at intents and damages. My guess is that a simple 'I sell X using my patents, they also sell X but are not paying" is vastly more likely to succeed. "But, but, Church-Turing" will just piss them off.
- 9y ago
- kakarot 9y agoOne has to wonder why this approach hasn't been successful in litigation against game console emulator developers.
- throwaway91111 9y agoPossibly because emulators didn't provide a source of potential licensing revenue—they're all free.
- kakarot 9y agoSome devs are making quite a bit on their Patreons right now through donations. https://www.patreon.com/cemu https://www.patreon.com/cemu https://www.patreon.com/Nekotekina https://www.patreon.com/Nekotekina 2 of the more well-known dev teams.
- drakenot 9y agoInteresting. I wonder why there is such a disparity between CEMU (building a Wii U emulator) getting $28k/mo and Nekotekina getting $1.2k/mo (building a PS3 emulator).
- kakarot 9y agoEasy. Breath of the Wild. I bought the game so I could emulate it on my PC and it runs almost flawlessly. Between the launch of the game and now, their monthly donations have just been going up and up and up. Just a few months after release, it runs at a higher (more consistent, anyway, because it's still capped at 30) FPS and resolution than either the Wii U or Switch could provide. The PC BotW experience is actually already the definitive experience. It will probably stay decently high for a while too while they hammer out compatibility for other Wii U games. See, it's still worthwhile for me to pick up an old PS4 and amass a decent library while also still being able to buy new titles, but the Wii U was an absolute dud and there is 0% incentive to buy one now that it's already been axed. Emulation will be the only saving grace for its stellar exclusive titles. And since the Switch has its own share of problems handling BotW, it's really a no-brainer to invest a little in CEMU's future. The CEMU devs are absolute demons, on par with Dolphin's team. As for RPCS3, the PS3 has a big enough library and is cheap enough to make it worth just buying one until the devs can catch up. AFAIK there isn't a single fully working commercial game on it yet.
- it__guy 9y ago> Explaining it to a judge, who (while likely highly intelligent) probably has no CS background, over the course of litigation is likely to be really hard. Unless the case is presided by Judge Alsup, who learnt to write Java programs during Oracle v. Google.
- Asooka 9y agoWhat if it doesn't emulate x86 on the fly, but reassembles the binary for the target architecture? This obviously won't work in many cases, but should be fine for run-of-the-mill business software, which is what Microsoft is mostly targeting.
- rkeene2 9y agoThis is called static recompilation or static binary translation. It is hard.