Suing individual users of H.264

Posted Feb 8, 2010 2:07 UTC (Mon) by jhhaller (guest, #56103)
In reply to: iPad does in fact support H.264 by roc
Parent article: HTML5 video element codec debate reignited

Suing end-users would be dependent on the particular domestic law. In the US, my understanding (IANAL) is that practicing a patent does not require a license, only importing or distributing. Certainly, if I were to write my own H.264 decoder, I am not infringing. Now, if I were to distribute a software decoder, that would require a license under current case law. Surprisingly, there has been no effort as of yet to stop US-based mirrors of distributions containing FFMPEG. Of course, this case law is under review by the US Supreme Court, so this uncertainty could be inhibiting bringing of lawsuits, as they could make such lawsuits easier or harder. This leaves the typical method of getting H.264 software, importing it into the US. The International Trade Commission can block import of products containing patented technology, although how that would play out against multiple, independent importers could be interesting.

Suing individual users of H.264

Posted Feb 8, 2010 4:01 UTC (Mon) by Trelane (subscriber, #56877) [Link]

"In the US, my understanding (IANAL) is that practicing a patent does not require a license, only importing or distributing."

The USPTO Sez (http://www.uspto.gov/web/offices/pac/doc/general/#patent)

The right conferred by the patent grant is, in the language of the statute and of the grant itself, the right to exclude others from making, using, offering for sale, or selling the invention in the United States or importing the invention into the United States. What is granted is not the right to make, use, offer for sale, sell or import, but the right to exclude others from making, using, offering for sale, selling or importing the invention. Once a patent is issued, the patentee must enforce the patent without aid of the USPTO.

Relevant portions bolded and italicized by me. (See also the the MPEG-LA's response to my query in the other article comments.

Certainly, if I were to write my own H.264 decoder, I am not infringing.

Yes, you would. That would be the non-bolded "making" above, which precedes the bolded "using".

Now, if I were to distribute a software decoder, that would require a license under current case law.

Perhaps under current case law (IANAL), but not under a strict reading of the USPTO's talk (as long as it's not for sale, sold, or brought into the US).

Suing individual users of H.264

Posted Feb 8, 2010 20:50 UTC (Mon) by roc (subscriber, #30627) [Link] (1 responses)

> In the US, my understanding (IANAL) is that practicing a patent does not
> require a license, only importing or distributing.

Incorrect. Practicing requires a license.

> Certainly, if I were to write my own H.264 decoder, I am not infringing.

Incorrect. If you used it, you would be infringing.

Suing individual users of H.264

Posted Feb 8, 2010 21:10 UTC (Mon) by Trelane (subscriber, #56877) [Link]

If you used it, you would be infringing.

If you used an encoder/decoder that you wrote, you'd be infringing twice (see the USPTO link above; the act of making a patented idea is prohibited, as is using an implementation without a license).