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Technology news and Jobs 
The Linux distillery It’s the law: open source doesn't mean no copyright
The Linux distillery It’s the law: open source doesn't mean no copyright | It’s the law: open source doesn't mean no copyright |
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| by David M Williams | |
| Monday, 18 August 2008 | |
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Page 2 of 3 Interestingly, KAM proposed within this letter that JRMI merge their Java interfaces such that only a single application could be created to avoid any further alleged infringement. Given the patent specifically dealt with multiple simultaneous clients communicating through a server to control the model trains it stands to reason that changing at least one part of this would prevent the claim that the patent has been breached.KAM also suggested that JRMI pay $19 for each copy of JMRI downloaded or otherwise installed. Jacobsen wrote back to ask precisely how he was violating the patent. KAM responded by continuing to assert an infringement and raising the licensing fee to $29. This letter explicitly demanded a fee of $203,000 based on a calculated 7,000 copies distributed. In October KAM submitted another bill with finance charges of $3,000 or $206,000 in total. I am sure you could imagine the shock Jacobsen presumably had when he received this. He had altruistically given away a software package for the benefit of hobbyists and enthusiasts and potentially faced a hefty fee approaching a quarter of a million dollars! Nevertheless, no matter the goodness of anyone’s intentions, you will recognise KAM did have a patent issued to them. At this stage, KAM’s letter was not a legal claim but a first approach. So, Jacobsen’s legal team struck first. They filed a declaratory judgment to dispute the validity of the patent. In United States law, a declaratory judgment can be applied for if you believe there is a threat of being sued and you have a legitimate controversy that can be settled by the court. In this case, the judge could “declare” what each party’s rights are and if he declares one party is not infringing the other’s patent then they cannot be sued; the problem essentially goes away. To support the argument, Jacobsen’s team listed examples of “prior art” dating back to 1986 which, they say, KAM failed to advise the Patent Office about and which he would reasonably have known about. One example given is that in late March of 2002 the JMRI project described their client/server capabilities on a mailing list which Katzer subscribed to. April 14th the following month saw the first version of JMRI made available for download. Three days later KAM filed its patent application. So, we now in fact have the reverse situation! KAM’s argument that Jacobsen violated their patent was challenged with the claim that KAM’s patent was invalid because they knew of JMRI’s existence and architecture prior to lodging their patent request. CONTINUED |
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