There has been a lot of talk (and here) about how the anti-gun bigots got pwned by a section in the microstamping bill that says it won’t take effect unless the technology is “available to more than one manufacturer unencumbered by any patent restrictions”. Furthermore those people dancing in the streets point out the primary patents won’t expire for another 15 years.
I hate to rain on everyone’s happy dance but check this out:
Question: Is microstamping a sole-source technology that would create a government-sanctioned monopoly for a single company?
Answer: The patent holder of microstamping technology has announced that a royalty-free license will be provided to every manufacturer in the United States on guns sold in California.
Tell me again who got pwned.
I will be the first to admit that I am all manner of stupid regarding patents, legalese, and anything related. Mostly that is just due to laziness/uninterest, but anywise… Even if the patent-holder were to offer royalty-free licenses, would not the licenses then qualify as “restrictions”? As in, if you do not have a license, you cannot use the hardware? I guess it would seem somewhat foolish to write a law requiring the use of a certain technology, and then disallow the use of that technology in the same breath, but this is Kalifornistan we are talking about here…
If you read the Calguns thread you reference above, the keyword in all of this with regards to patents is “unencumbered”. Not licensing or unrestricted. Unencumbered has a very specific meaning in patent law.
And unlike the Brady PDF you link to, the folks on Calguns are using the text of AB-1471 themselves where the language is used.
I tend to agree with the Calguns folks from a patent perspective. If the language was “licensed” or “royalty-free” to more than one manufacturer, the conversation that is happening wouldn’t be. These folks are correct and the language places the microstamping maker in a very difficult bind. They have to decide: drop the patent and make the technology free for implementation or try to profit from it. If they try, microstamping with THEIR technology can never be implemented in Cali under the AB-1471 langauge. It’s not to say someone couldn’t come up with an alternative technology that would avoid the patents on the existing tech but I wouldn’t hold my breath. Patent lawsuits are fun to watch and most are lost in court if they go to challenge.
And unlike most lawsuits which result in cross-licensing, a cross-license here is still a defeat. The technology would still be encumbered. And since it can’t be struck down on prior art claims of obviousness, dropping the patents and releasing the technology into the public domain free and clear is the only way.
IANAL but I understand the basics of how patent law works as a casual observer and these folks on Calguns are more likely right than wrong.
Thanks for the elaboration Matt. Now I need to elaborate a bit more.
What I’m concerned about is that California will claim “royality-free” means “unencumbered” for the purposes of microstamping in California. Then who and on what grounds will be able to challenge that interpretation of California law?
Politicians and lawyers play games with words all the time. Think this through and explain to me how someone can take it to court if the California AG twists the meaning of “unemcumbered”.
The State of California can claim whatever it likes with regard to “royalty-free” vs. “unencumbered”.
Patent law does not agree with their interpretation and all one citizen or group has to do is sue the state under the language of the law with a patent attorney at their side. Then let the judges sort it out with injunction against implementing the law until the meaning of “unencumbered” is sorted out.
It’s not our fault someone manage to put one over on the legislators with language. It works equally for both sides. It is clear the use of that term was specific. Normally, you would see references to uses of patented technology under “royalty-free” or under RAND (reasonable and non-discriminatory) terms for multiple makers to implement so as to break the single manufacturer monopoly the government wanted.
Except the didn’t use that language. The term is clear. If there is a patent on the technology, the technology is “encumbered”. Ask any patent attorney. It doesn’t matter the terms under which the technology can be used, up to and including free for anyone to make without license (which I think is what the CA legislators were thinking).
But they used that specific term. And I think it will burn them if they don’t realize it and correct it down the road via a quiet amendment somewhere to change the language.
You think the CA gun groups are going to let that slip by without notice? They’ll be looking for anything now involving changes to AB-1471.
This is an off-the-cuff response. If you like, I can pose the question to a patent attorney I know or others more versed in IP law than I to get a more definitive answer. I’m curious about this as well.
I wouldn’t put it past them to play games as you say but they stacked their own deck against themselves.
I’d be interested to hear the answer from the patent attorney but don’t go to any special effort on my part.
I believe what you say but I have little confidence in the courts to abide by the law. The 2nd Amendment language is clear too but the courts twisted those words to mean whatever they wanted. If you and I know “what the legislators were thinking” then so will the judge and might just “amend” the law on the fly.
In any case I view it sort of like Jews in a concentration camp debating whether the showers and ovens will be working tomorrow or next week. It’s irrelevent in the big picture–it’s time to escape or revolt.