Subject: Re: New angle on the patent problem
From: "Stephen J. Turnbull" <turnbull@sk.tsukuba.ac.jp>
Date: Tue, 21 Sep 1999 10:03:51 +0900 (JST)

>>>>> "kms" == Karsten M Self <kmself@ix.netcom.com> writes:

    kms> However I believe Assaf's assertion is naive.  IMO a court
    kms> would have to balance the powers of copyright and patent, and

Wrong.  No "balancing" -- it enforces both.  If the parties cannot
negotiate an agreement, then all must cease and desist their
infringing activities.

This kind of possibility is explicitly recognized in the GPL and its
accompanying gloss, by the way, just a priori.  But the law doesn't
care whether infringing behavior is recognized before or after the
fact.  Except that the court might decide to punish an intentional
infringement, over and above enjoining the infringement and assigning
damages.  So ex post is less dangerous to the infringing party.

In practice, as Craig points out, courts do overstep this theoretical
role.  But such overstepping is normally overruled by higher courts,
unless the court in question is the Supreme Court.  Betting on your
case being heard by the Supreme Court, let alone the Court deciding to 
bypass legislation and precedent in your favor, is a good way to go
bankrupt.

IANAL, this is just what they taught economics students interested in
antitrust and patent law in the 1980s.

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