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Comment by JulianMorrison | Hacker News Reader

The major trouble with patents, and the thing that puts them in a special category of nuisance all of their own, is that it's fundamentally impossible to know that a thing is unencumbered until each particular claim to the contrary has been hashed out in court, at ruinous expense. And there is no legal proscription against patent owners letting you think you were safe for years, and then popping up to cream off the fruits of your work. We know MP3 was encumbered. We don't, and can't, know that MP3, Vorbis, and so forth aren't encumbered now. All we can know is that nobody has popped up to hold the industry to ransom... yet.

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I'm really glad New Zealand decided to disallow software patents. I wish more countries would follow suit.

Has any action been taken against them by other countries or even private industries for this?

IIRC one of the things that the TPP was supposed to do was "harmonize" (read: ram the US idea of down the throats of everyone else) software patents and other relevant aspects of IP law that were near and dear to major US companies.

Since TPP is dead, the IP-dependent industries may start looking for a new venue, as they appear to have been putting a lot of eggs in that particular basket. But there may be a short-term reprieve for countries not currently toeing the US party line.

I'm really glad New Zealand decided to disallow software patents

No, that is not the case.

http://www.ajpark.com/ip-central/news-articles/2016/05/new-z...

What the Zeds have done is really not so different from what the Supreme Court decided in Enfish:

  claims purporting to improve the functioning of the
  computer itself, or improving an existing technological
  process might not succumb to the abstract idea exception

Abstract software is excepted (disallowed) but software which really controls machines is allowed.

This source is a bit clearer:

http://www.iam-media.com/blog/detail.aspx?g=96d4aeaf-dedf-4a...

"Effectively, if the invention lies purely in software, then it is considered unpatentable. However, as outlined in the explanatory note of the SOP, patents will still be able to be granted for inventions that

a) make use of computer programs where the contribution lies outside of the computer, or

b) affect the computer but is not dependent on the type of data being processed or the particular application being used.

Essentially embedded software is patentable where it improves the operation of hardware, along with software that improves the way a computer runs. Again, this is consistent with the UK."

Also Zeds is a really strange name for us. Correct term is Kiwis or Rugby Overlords :)

"it's fundamentally impossible to know that a thing is unencumbered until each particular claim to the contrary has been hashed out in court, at ruinous expense"

That applies to MP3 (and all of MPEG and other 'licensed' systems) as well. See for example Sisvel's MP3 related patents that led to raids on MP3 players at the Cebit fair.

>it's fundamentally impossible to know that a thing is unencumbered

One noteworthy exception, which plays a much bigger role in slower-moving industries, is that an exact copy of something sold over more time than the pendency of any patent in existence (mostly less than 23-24 years) is clear. But the larger point holds. Comparing patent claims to products and prior art is hard and expensive.

It's not even enough that the thing you're selling be an exact copy of something old. Your manufacturing process or other business processes (sales channels, support channels) could also be infringing on some newer patent.

Can't we take winamp's initial release from April 21, 1997, add 1 year for late filing, and say anything it did is unencumbered by April 21, 2017? (Let's ignore patents filed before June 8, 1995 and issued later, since we're approaching the end of those, I hope)

WinPlay3 was released by Fraunhofer themselves in September 1995.

If you can demonstrate standing and pay a lawyer a ton of money, then yes, you could argue that.

If an implementation of a patent exists, and that patent expires, it is impossible for that implementation to infringe another patent for the same thing, because any other patent that applies would have been invalid when issued, because of the previous patent.

Eh, not necessarily, I've heard that one thing patent owners do is keep the thing ticking over by patenting something else sufficiently close to the original that they overlap and sufficiently different that they can be argued as distinct. Sure it's infringing - but it's infringing their own stuff. So, not invalid.

Note: as to whether any particular tactic like this stands up in court or not, you'll find out if you fight it in court. You and your huge heap of cash, that is. Don't have a huge heap of cash? Then the question is moot, isn't it, peasant?

Not necessarily. You could patent an improved engine. 19 years later, I could patent an improved alloy that someone might use in your engine. Your patent expires in year 20, but they still infringe if they make your engine with my alloy for the next 20 years.

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