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RE: Formal Objection to One vendor, One Veto

From: Chris Wilson <cwilso@microsoft.com>
Date: Wed, 15 Jul 2009 23:19:30 +0000
To: Silvia Pfeiffer <silviapfeiffer1@gmail.com>
CC: Shelley Powers <shelleyp@burningbird.net>, Lachlan Hunt <lachlan.hunt@lachy.id.au>, Sam Ruby <rubys@intertwingly.net>, "www-archive@w3.org" <www-archive@w3.org>, "Michael(tm) Smith" <mike@w3.org>, Dan Connolly <connolly@w3.org>, "public-html@w3.org WG" <public-html@w3.org>
Message-ID: <61027177C88032458A7862054B3C625803E34A0D@TK5EX14MBXW651.wingroup.windeploy.ntdev.microsoft.com>
Silvia Pfeiffer [mailto:silviapfeiffer1@gmail.com] wrote:
>As far as I understand MPEG-LA's patent pool: it is a means to get a
>license for the "patent thickets" surrounding MPEG standards and thus
>a distribution scheme for royalties to companies that have a patent
>claim in the MPEG standards. The Patent Pool is, however, in no way
>shape or form providing any form of protection to its licensees wrt
>new patent claims of companies that are not taking part in the "patent
>thicket" (http://www.mpegla.com/aboutus.cfm).

You're quite right; in fact, given my limited understanding of patents (IANAL, TINLA), there is no way I know of to provide any such protection.  At all.  There can always be an unknown patent, and the holder of that patent can sue anyone they like if they have not made licensing arrangements.

>In fact, there have previously been examples where licensees of the
>MPEG-LA patent pool have been sued (individually) by patent holders,
>in none of which MPEG-LA was even a part:
>
>* the Jan 2008 Qualcomm's case against Broadcom alleging infringement
>of two patents related to products that used the H.264
>video-compression standard:
>http://www.ims-expertservices.com/bulletin/jan/discovery-abuse.asp

I'm not sure of the status or details of that case, though I thought it was lost on appeal (http://www.tradingmarkets.com/.site/news/Stock%20News/2062573/).  It seems like an interesting underscoring of the need for patent policies in standards groups, though.  :)

>* the June 2007 Alcatel-Lucent case against Microsoft allegedly
>infringing on their patent technologies related to MP3 compression:
>http://arstechnica.com/old/content/2007/02/8910.ars

That decision was negated, was it not?  (http://www.bloomberg.com/apps/news?pid=20601087&sid=aXQelCEz08tQ&refer=home)  If it had not been, I would expect the patent would cast a pall over MP3, unless it were acquired by the MPEGLA.

>I do not think that setting up a patent pool for Theora makes any sense at all:

I agree with you.  I didn't word that quite strongly enough in my response; but I think the reason why I mentioned that is that based on others' feedback, I expect there WOULD be a suit similar to the Alcatel-Lucent one, and you'll note who was sued in that one.  Microsoft is certainly not the only one who implements MP3 support in their products.  Video has a lot of patents.

>first -  the only known patents that Theora makes use of are the ones
>owned by On2 and On2 have already provided royalty-free licenses to
>these; so, it would be a very lonesome pool

...until such time as other patents might be discovered, in which case one would expect the pool would want to acquire them.  But that would change the game substantially around Ogg.

>I do think, however, that two things make sense:
>
>first - the analysis of the patent space surrounding Theora and
>publication of a document containing the outcomes of such an analysis,

I'm not sure you could do that exhaustive a patent search, but okay.

>secondly - the preparation of adoption of Theora as part of a
>standard, and as part of that preparation there needs to be a call for
>any patent holders to step forward within a given time frame. If such
>a call was widely distributed and the distribution documented, a court
>would be in a position to reject any later patent infringement claims
>where the patent holder had obvious knowledge about the request to
>step forward and have knowingly ignored that request.

I don't know if that would have any legal standing.  (I'm not saying it wouldn't - I'm saying I'll well out of my depth and cannot respond.)

Perhaps the best answer would be to mandate that any conformant UA has to support either Ogg/Theora OR MP4/H.264.  At least that would mean only two encodings would be necessary to get interoperability.

-Chris
Received on Wednesday, 15 July 2009 23:20:57 GMT

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