Eric Goldman, associate professor of Law at Santa Clara University School of Law and a noted tech law blogger, also characterizes Briggs's letter as overreaching.
"The request not to explain the algorithm appears to be a clear overreach on the patent owner's part," he said in an e-mail. "The threat that publishing code from a Netherlands server constitutes potential patent infringement of a US patent is probably an aggressive legal position. (The letter references patent applications in the Netherlands, but the applications are not a property right until granted, so the US patent owner does not have any enforceable rights in the Netherlands yet)."
Goldman says that even if the code were published on a server in the US, it's not certain the person who posted the code would be directly liable for patent infringement. "It depends on whether coding the algorithm constituted 'making' the patented invention," he said. "More likely, I would expect the code author could be liable only for contributory infringement from code users who infringe on the patent, and that would require knowing more about the users' direct infringement."
Briggs claims that Landmark, in addition to having two specific U.S. patents, has "additional issued patents and pending patent applications in the US and EU that cover these concepts as well."
But Briggs has not cited any specific EU patents. And BMI's Pantel did not respond to a request to provide the EU patent numbers that Landmark claims to have been granted.
Craig Hemenway, a partner in Dorsey & Whitney's intellectual property practice group, said that much depends on the EU patent situation. "Software is clearly patentable subject matter," he said.
He notes that if you file in the EU patent office, you have to decide which EU countries you want to register the patent in once the patent is granted. "If they did not in fact register in the Netherlands, they can't bring a cause of action in the Netherlands," he said. However, he acknowledged that Landmark could initiate legal action in the US claiming that software published on a Dutch server is accessible in the US, which could be said to be contributory infringement at least.
Yet, Hemenway also suggested that, particularly in light of the Supreme Court's recent decision in the Bilski case, Landmark's patents might be subject to challenge, if they describe an abstract idea rather than a specific implementation. The musical operations described, he said, sound as if they could be carried out by a sufficiently skilled person with a pencil and paper.
Discover the benefits of scalable backbone and network services for application and cloud providers.
Network automation is gaining momentum. Here's how you can drive this powerful technology to its full potential.
Subsea cable alternatives can provide a level of comfort for those concerned about disruptions. Realistically, they will continue to play a small, but critical role in the short term.
