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Re: More FSF hypocrisy

From: Hyman Rosen
Subject: Re: More FSF hypocrisy
Date: Wed, 25 Mar 2009 14:27:48 -0400
User-agent: Thunderbird (Windows/20081209)

Alexander Terekhov wrote:
Hyman Rosen wrote:
And have those alleged blunders been overturned on appeal?
Oh yes. In the case of Quanta

Hm. As usual, your postings contradict your thesis.

    [LGE] cites General Talking Pictures Corp. v. Western Elec. Co.,
    304 U. S. 175 (1938) , and General Talking Pictures Corp. v.
    Western Elec. Co., 305 U. S. 124 (1938) , in which the
    manufacturer sold patented amplifiers for commercial use, thereby
    breaching a license that limited the buyer to selling the amplifiers
    for private and home use. The Court held that exhaustion did not
    apply because the manufacturer had no authority to sell the
    amplifiers for commercial use, and the manufacturer "could not
    convey to petitioner what both knew it was not authorized to sell."
    General Talking Pictures,  supra, at 181.

We see from this that licenses with conditions work as intended.

See Keeler v. Standard Folding Bed Co., 157 U. S. 659, 666 (1895)
> (“Whether a patentee may protect himself and his
assignees by special contracts brought home to the purchasers is not a
question before us, and upon which we express no opinion. It is,
however, obvious that such a question would arise as a question of
contract, and not as one under the inherent meaning and effect of the
patent laws”)."

That is, when patented devices are sold to a buyer, the patents rights
of the patent holder are exhausted, and patent law gives him no control
over what the buyer may do with those objects. But those objects have to
be sold legitimately. Without proper license, patent law does apply, as
in the amplifier case cited above.

Code under the GPL acts similarly to the amplifiers; it may be copied
and distributed only as specified by the license, otherwise copyright
infringement occurs.

SCOTUS overturned CAFC on the Quanta case because CAFC seems to have
misread the agreement between LGE and Intel. The agreement did not
forbid Intel to sell the memory controllers to anyone it chose, it just
did not extend LGE's patent protections to all those customers, Quanta
included. However, patent exhaustion meant that Quanta did not need
LGE's license to exercise the patents. There was no issue here of
contract vs. license, or misunderstanding the nature of conditions.

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