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The win-win patent myth

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Some software patent advocates claim that as long as the newness and innovativeness of the idea is sufficiently examined, patents are always a win-win because when the patent is published, you either can choose to license the idea, or you can continue to develop your software without the idea, in which case you've lost nothing compared to before the patent was published.

This is wrong for the following reasons:

  • The patent holder may refuse to grant you a patent license. This is especially a problem for free software.
  • The patent may cover a file format or a standard which your users expect. If you're writing a video player, and the most widely used format on the Internet is MPEG h.264 (MP4), then the patents held by MPEG LA are a problem. If you boycott the patented ideas needed for that format, then your video player will not be useful for playing videos.
  • The patented idea might be independently developed by another software developer before the 20-year expiration date of the patent is reached.

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