Submarine patent threat still valid?

Posted Feb 4, 2010 10:18 UTC (Thu) by nettings (subscriber, #429)
Parent article: HTML5 video element codec debate reignited

Regarding the alleged threat of "submarine patent claims" against Theora, I wonder: Theora has been used to serve content to a large public audience for a long time and, where used, has usually been advertised very visibly.
IANAL, but don't most if not all patent legislations contain clauses that patents have to be *enforced* or else be invalidated? Which submarine patent holder could plausibly claim at this point that s/he has heard of Theora only since its inclusion in HTML5? It's clear that there has been no financial gain in suing current Theora users before its widespread inclusion in commercial browsers (and imagine the PR disaster in trying to put Wikipedia out of business), which is why nobody has stepped forward until now. But haven't any alleged patent holders already forfeited their claims by not acting?
In short: shouldn't it be easy to identify the submarine patent myth as the smokescreen that it is?

Submarine patent threat still valid?

Posted Feb 4, 2010 10:28 UTC (Thu) by wingo (guest, #26929) [Link] (2 responses)

Hi Jörn,

I could be wrong, but I don't think patents are like that. You have to protect trademarks for them to remain "valid", but patents no.

Corrections welcome of course...

Submarine patent threat still valid?

Posted Feb 4, 2010 15:17 UTC (Thu) by gmaxwell (guest, #30048) [Link] (1 responses)

Right, patents are not "use it or lose it" like trademarks. However, estoppel is a general principle of law and some have proposed more aggressive use of estoppel as a general tool to deal with the risk of non-disclosed patents gumming up the creation and adoption of standards. (I highly recommend that paper: it provides a good view 'down the rabbit hole' of the current mess that exists between patents and standards)

Submarine patent threat still valid?

Posted Feb 5, 2010 21:38 UTC (Fri) by giraffedata (guest, #1954) [Link]

But we're not talking about nondisclosed patents here. A submarine patent is a patent that doesn't exist yet.

So you'd have to go further with estoppel and find a duty of an inventor to meet some standard of effort in getting the patent office to grant the patent quickly. It would be rather difficult to prove that the patent didn't issue sooner because the inventor wanted people to use the invention royalty-free during that time.

Submarine patent threat still valid?

Posted Feb 4, 2010 22:24 UTC (Thu) by AndreE (guest, #60148) [Link]

Well the submarine patent argument is a bit of a strawman because it is equally valid for PATENTED software as well.

Look on MPEG-LA page where they state that licensing the patent from them doesn't guarentee against litigation by other parties.

Also cross reference the Alcatel-Lucent v. Microsoft case where AL sued Microsoft for mp3 patent infringement despite Microsoft already paying Thompson license fees.

Software patents are such a joke because no one is absolutely sure who own the patents to what exactly. It looks very much like a cartel managed by "legitimate businessmen" if you know what I mean