Subject: Re: termless copyright and patents
From: <stephen@xemacs.org>
Date: Mon, 25 Sep 2006 17:59:23 +0900

Thomas Lord writes:

 > Oh, and, while I did want to avoid too much spiraling into minutiae,
 > one thing did strike me as important:

 > stephen@xemacs.org wrote:
 > > I don't see how.  The follow-on innovation problem is that a
 > > patent-holder has a nearly absolute right to prohibit practice of
 > > claims. 

 > I can't figure out how to square your assertion there with the decision
 > in Ebay v. Mercexchange.

You're correct.  I can't justify that even as hyperbole.

However, you should note that (1) one concurring opinion pointed to
the existing tradition of granting injunctive relief, suggesting that
there is support on the Court for the position that the burden of
proof would be on the infringer to show that an injunction was
inappropriate, (2) a patent-holder certainly does have the right to
seriously obstruct practice of claims, and (3) (ObTopicality) they
likely have a "nearly absolute" right to prohibit practice of claims
in publically distributed free software, as the burden of enforcing
"reasonable" royalties on each and every individual downloader would
far outweigh the royalties, and I'll bet a court would issue
injunctive relief to stop (say) the FSF from deliberately pissin' in
the soup that way.

In view of (2) and (3), I thinking amending "nearly absolute right to
prohibit" to "decisive right to obstruct" leaves my argument intact.
[(1) is just a warning that "yes, Ebay v. MercExchange helps, but
don't bet your firm on it".]