Brad,
Infringement requires that someone makes, uses or sells at least
one patent claim (claims are explained below). If someone
infringes by using, not selling, they still infringe. If an
infringement occurs, whether it be by making using or selling, the
patent owner is entitled to damages. The damages are, at a
minimum, a reasonable royalty. If someone infringes by using a
patented process, and gives away the result of that use, they still
must pay a reasonable royalty.
The claims are numbered paragraphs at the end of the patent. You
can look at the gift patent - patent.womplex.ibm.com.ibm.html
Click on number search and enter 4528643. I am making a second post that compares claim 1 (if one claim is infringed the patent is infringed) to an explorer download.
Assume that a free download of explorer infringes. That doesn't
mean all downloads infringe and GIFT should sue the whole net.
First, downloads that are transitory (i.e.) the information doesn't
remain "part of" the hard drive probably won't be considered making
a material object.
Second, the bigger the target, the bigger the damages. Assume MSFT
hasn't paid a license, and has infringed 100 million times (I have
no ides how many downloads MSFT has made - pure guessing). How
much is a reasonable royalty? The alterative to GIFT technology
would be mailing or direct calling. The cost of mailing a would be
at least a buck (disk + postage). The direct call would be the
cost of a long distance call for many users, or a local and the
cost of having a local server. A reasonable royalty would be less
then these alternatives. Say $0.25. That would mean $25,000,000
damages. Since MSFT is so big there is likely to be a jury bias
against them. That would increase the odds of GIFT prevailing, and
increase the likelihood of a favorable reasonable royalty.
Compare that with suing a mom and pop company (perhaps daughter and
son where the internet is concerned). The bias would be in favor
of the infringers. Also, what they would reasonably pay would be
very low, since if they were giving away info, and had to pay $0.25
per give-away, they would probably not do it. For them
"reasonable" might be one cent or less. At a penny a download, why
bother suing.
My numbers are merely exemplary, but I think the reasoning is clear
enough. One more point, assume GIFT wins. Of course the
defendants appeal, and don't pay until the appeal is over. Each
time a new person or company is sued, they get a chance to prove
the patent is invalid. Once its invalid, its invalid for all.
Those who have not paid up because they are waiting for an appeal,
will likely end up not paying (but GIFT will probably gets to keep
what it has collected from settlements and appeals that are over).
Does GIFT want to run the risk of having an invalid patent and
lose the big wins, in an attempt to go after the little fish.
No. But they might want to go after MSFT, or wait the year and a
half for the appeal to end, and then go after MSFT.
GRC |
