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A few things you ought to know about patents and how they relate to MP3 technology

Q: What is a patent?

A: Patents are all about protecting a technical innovation so you can market it and at the same time deny competitors the right to copy it.. In general, there are 3 ways to protect an invention.
1. Saturate the market so fast that no one else will be able to sell it.
2. Keep it a secret.
3. Patent it. According to the hype, a patent is an exclusive right or privilege bestowed on a patentee by a country to make and sell the invention for a limited period. After the patent expires (usually 17 years) the invention falls into the public domain. It is common to think of a patent as a fence around an invention. Everything on the inside of the fence is owned by the patentee for the life of the patent. Everything outside the fence is in the public domain or under other private ownership. The objective is to construct an impenetrable fence around the largest possible area. Carrying the fence analogy further, it is important to build a strong fence in order to avoid the risk of predators from sneaking in and making off with your property. So much for the hype. In reality, a patent is simply a license to sue infringers, nothing more. For this reason, a patent often fails to do its job effectively.

Q: Do patents really protect an invention?
A: Only in special circumstances. If someone infringes your patent, don’t expect Interpol or the FBI to storm out of their bunkers like Batman out of the Batcave to go out hunting for the infringer. Infringing a patent isn’t a criminal act, and the full weight of protecting a patent is squarely on the shoulders of the patentee. In the process, the patent holder faces enormous obstacles and costs in winning the day over any infringer. Unless you are prepared to spend a lot of money, don’t even think about using the courts to protect your invention. The patent system is definitely an elitist institution, not universally available to everyone. It hasn’t seen a lot of change in a hundred years, and is badly out of touch with the needs of the new millenium. Sure, anyone can get a patent, as I have. But the real key is, can you effectively defend it when it becomes necessary? Don’t count on it.

Q: What about MP3 technology? What is its patent status?
A: MP3 technology is apparently covered in several patents issued in the U.S., Germany, and others. These patents have been issued to Fraunhofer Institute, a private German corporation. Precisely what is covered in these patents and what is not, is a matter of some controversy, and well beyond my intention to attempt to provide any interpretation.
But let me deal with those areas where I think I can shed some light. MP3 technology is a software algorithm. This has only become patentable subject matter in the last few years, and then only in some countries, and not others.
The second point is this: when you get a patent, the government does not roll out a banner telling the world that you are the owner of this or that technology. Sure, they publish your patent, but the world still is faced with interpreting and defining exactly what, if anything, you own in the patent that has any value. You may get a certain interpretation from the owner of the patent, and quite another from other parties. It is not difficult to imagine that the patent owner will provide you with the most generous (to himself) version of what the patent covers. So whom are you to believe? The issue, if you do not already know it is this: understanding what is covered in a patent, and what is not, is very tricky business, even to a lawyer. If you ask a patent attorney for his or her opinion on what a patent says, you will be billed a large amount of money . In all likelihood, ask another lawyer the same question, and the opinion will be quite different. Fraunhofer’s own pronouncements seem to point to very broad ownership by it of MP3 technology. But I have not heard much on this subject from informed, independent parties. Here are one or two exceptions:

 http://www.mp3-tech.org
 http://bladeenc.mp3.no/

Q: OK, if there are no definitive answers about MP3 patents, what should I do if I want to use MP3 technology?
A: If you are a home user, downloading software that enables you to encode your CDs to MP3 format, and using it for your personal pleasure, I don’t think you have much to worry about, unless you are actively reselling the files or the software. If you are selling copyrighted music files, you should be more concened about the RIA descending down on you for copyright infringement, than of the response from Fraunhofer. If you are a software developer using MP3 technology in your application, the concerns are quite different, and very uncertain (at least to me). At the very least, the developer has a duty to himself to become informed, as much as possible, and use strategies that would avoid the technical liability of infringent. Many developers have obviously failed to do that, and have charged ahead, freely using MP3 technology in their applications without paying attention to the patent issues involved. There are also numerous grey areas, and other questions to be answered. But these will be dealt with later.

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