(OT) - Major Blow to Copyleft Theory

[Alexander Terekhov]

On 8/27/07, Lawrence Rosen <lrosen at rosenlaw.com> wrote:
> Regarding Alexander Terekhov's quotation [see below] from the De Forest
> Radio case (273 U.S. 236), he omitted the very next sentence:
>
>   "Concede that, if the owner had said, 'If you go on and infringe
>   my patent, I shall not attempt to enjoin you, but I shall
>   subsequently sue you for infringement,' the tort would not
>   be waived; that is not this case."

Uhmm. I don't see the point. Here's full context:

-------
It is conceded by the parties that on the face of the petition, with
the contracts which were made exhibits, the De Forest Company and the
American Telephone & Telegraph Company had each the right to license
to the United States the making and use of these audions, and that, if
either did so license them, it would be a complete defense to a claim
for damages for the tort of infringement by the other.

The sole question, therefore, which the Court of Claims considered and
decided against the appellant was whether, on the facts recited in the
petition, the American Telephone & Telegraph Company had in fact given
a license to the United States to have made and use these audions
covered by the patents. In other words, was the claim which the
American Telephone & Telegraph Company had against the United States,
for the manufacture and use of the audions, based on a contract, or
was it based on a tort? If it were the former, it was a full defense
to any claim by the De Forest Company. If it were the latter, the De
Forest Company was entitled to recover under the act of 1918

The appellant says that the necessary effect of the allegations of his
petition is that the Telephone Company said to the United States, in
answer to the United States' notice that it wished to make and use the
audions, 'You will be infringing my rights; I shall not stop you, but
I notify you that I shall hold you for such infringement;' and
therefore that the subsequent acts of the United States and its
manufacturers were torts. We think a different construction should be
given the allegations. The agreement by the Telephone Company that it
would not do anything to interfere with the immediate making of the
audions for the United States, interpreted in the light of its
subsequent action in assisting the United States to a prompt making of
the audions for its use, in furnishing the needed information and
drawings and blueprints for such manufacture, and in giving to the
experts of the United States and its manufacturers the opportunity to
witness and study the manufacture of audions by the Telephone Company,
to the end that the audions might be more promptly manufactured and
delivered to the United States for use in the war, made such conduct
clearly a consent to their manufacture and use, and a license, and
this without any regard to the effect of the subsequent release by the
Telephone & Telegraph Company of compensation for such manufacture and
use.

No formal granting of a license is necessary in order to give it effect.

[...]

Concede that, if the owner had said, 'If you go on and infringe my
patent, I shall not attempt to enjoin you, but I shall subsequently
sue you for infringement,' the tort would not be waived; that is not
this case. Here the circumstances show clearly that what the company
was doing was not only fully consenting to the making and using by the
United States of the patent, but was aiding such making and using, and
in doing so was licensing it, only postponing to subsequent settlement
what reasonable compensation, if any, it might claim for its license.
-------

So they are just saying that there was a license. That's it.

[... material contract breach and license termination/rescission ...]

Without proper notice, offer to cure, and all these formalities?

Don't get me started on that. ;-)

regards,
alexander.