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I thought that with patents, each entity among the manufacturing chain potentially needs a license? There is no analog for the first sale doctrine, or neither a

I thought that with patents, each entity among the manufacturing chain potentially needs a license? There is no analog for the first sale doctrine, or neither a requirement for consistent enforcement (as is there for trademarks).

brucethemoose2 3y ago
As far as hardware decoding goes, I thought chipmakers paid the fee for everyone down the line? Otherwise... thats pretty horrific. Would businesses using HP laptops en masse be exposed too?
- fweimer 3y ago
  Certainly not for everyone. Even if you buy professional videoconferencing equipment for business purposes, you do not get a patent license for its commercial use. Those paid offerings typically come with terms similar to the ones Cisco includes in their free Open264 builds: THIS PRODUCT IS LICENSED UNDER THE AVC PATENT PORTFOLIO LICENSE FOR THE PERSONAL USE OF A CONSUMER OR OTHER USES IN WHICH IT DOES NOT RECEIVE REMUNERATION TO (i) ENCODE VIDEO IN COMPLIANCE WITH THE AVC STANDARD (“AVC VIDEO”) AND/OR (ii) DECODE AVC VIDEO THAT WAS ENCODED BY A CONSUMER ENGAGED IN A PERSONAL ACTIVITY AND/OR WAS OBTAINED FROM A VIDEO PROVIDER LICENSED TO PROVIDE AVC VIDEO. https://www.openh264.org/BINARY_LICENSE.txt https://www.openh264.org/BINARY_LICENSE.txt I'm not sure if if the relevant patent pools even have incoming licensing coverage for live Internet video because that arrived only after the pools had long been established.
derf_ 3y ago
> There is no analog for the first sale doctrine... There is. It is called patent exhaustion. See https://en.wikipedia.org/wiki/Exhaustion_doctrine_under_U.S._law https://en.wikipedia.org/wiki/Exhaustion_doctrine_under_U.S.... There was a fad of issuing a "covenant not to sue" in lieu of a license, specifically to try to avoid triggering exhaustion, but courts seem to be (correctly, in my IANAL opinion) treating them as licenses anyway. See, e.g., https://www.patentlyo.com/patent/2013/01/3rd-circuit-covenant-not-to-sue-is-a-license-and-therefore-not-dischargeable-in-bankruptcy.html https://www.patentlyo.com/patent/2013/01/3rd-circuit-covenan...
- fweimer 3y ago
  But isn't that easily avoided by suitably scoping the license grant?
  - derf_ 3y ago
    I would not say "easily"... patent holders will absolutely try to avoid the effects of exhaustion by imposing post-sale or field-of-use restrictions, but lawsuits about it have gone to the Supreme Court, e.g., https://supreme.justia.com/cases/federal/us/553/617/ https://supreme.justia.com/cases/federal/us/553/617/ (and not worked out well for the patent holder).

brucethemoose2 3y ago

As far as hardware decoding goes, I thought chipmakers paid the fee for everyone down the line? Otherwise... thats pretty horrific. Would businesses using HP laptops en masse be exposed too?

fweimer 3y ago
Certainly not for everyone. Even if you buy professional videoconferencing equipment for business purposes, you do not get a patent license for its commercial use. Those paid offerings typically come with terms similar to the ones Cisco includes in their free Open264 builds: THIS PRODUCT IS LICENSED UNDER THE AVC PATENT PORTFOLIO LICENSE FOR THE PERSONAL USE OF A CONSUMER OR OTHER USES IN WHICH IT DOES NOT RECEIVE REMUNERATION TO (i) ENCODE VIDEO IN COMPLIANCE WITH THE AVC STANDARD (“AVC VIDEO”) AND/OR (ii) DECODE AVC VIDEO THAT WAS ENCODED BY A CONSUMER ENGAGED IN A PERSONAL ACTIVITY AND/OR WAS OBTAINED FROM A VIDEO PROVIDER LICENSED TO PROVIDE AVC VIDEO. https://www.openh264.org/BINARY_LICENSE.txt https://www.openh264.org/BINARY_LICENSE.txt I'm not sure if if the relevant patent pools even have incoming licensing coverage for live Internet video because that arrived only after the pools had long been established.

derf_ 3y ago

> There is no analog for the first sale doctrine... There is. It is called patent exhaustion. See https://en.wikipedia.org/wiki/Exhaustion_doctrine_under_U.S._law https://en.wikipedia.org/wiki/Exhaustion_doctrine_under_U.S.... There was a fad of issuing a "covenant not to sue" in lieu of a license, specifically to try to avoid triggering exhaustion, but courts seem to be (correctly, in my IANAL opinion) treating them as licenses anyway. See, e.g., https://www.patentlyo.com/patent/2013/01/3rd-circuit-covenant-not-to-sue-is-a-license-and-therefore-not-dischargeable-in-bankruptcy.html https://www.patentlyo.com/patent/2013/01/3rd-circuit-covenan...

fweimer 3y ago
But isn't that easily avoided by suitably scoping the license grant?
- derf_ 3y ago
  I would not say "easily"... patent holders will absolutely try to avoid the effects of exhaustion by imposing post-sale or field-of-use restrictions, but lawsuits about it have gone to the Supreme Court, e.g., https://supreme.justia.com/cases/federal/us/553/617/ https://supreme.justia.com/cases/federal/us/553/617/ (and not worked out well for the patent holder).