[jcranmer]

Instead of trying to put words in my mouth, let me just say what I think:

I believe software patents are no more legal in the US than they are in the EU, and this is based on SCOTUS precedent in the US that makes the legal argument for software patents very sketchy. In a just world, that would mean that pretty much all of the MPEG-LA's patent portfolio should be worthless. But I suspect that in both the US and the EU, the fig leaf of "but I didn't patent the software algorithm, I patented the hardware running the software algorithm" is sufficient to get it granted and survive scrutiny to get it invalidated.

I don't have the time to look up the court case history of the EU--and I know that the EU is a civil law jurisdiction so the court case history isn't precedential in the same way it is in the US--but I would not be shocked if there have been cases that have upheld these software patents, despite the seemingly clear language in the treaties that software patents don't exist. Because the legal field is one wherein the "obvious" definition of software patent isn't necessarily the same as the legal definition.

The reality is that MPEG-LA positively asserts that it has a buttload of EU patents it can sic on your ass for violating, and were I being sued by them, I wouldn't be willing to bet that "but software patents are illegal!" is a winning defense.

[amiga386]

If you were to look it up, you'd find the European Patent Office (EPO) runs its own courts; boards of appeal, like the USPTO PTAB/BPAI. It set precedents on itself with appeal decisions and opinions. However, it is the member states (party to the European Patent Convention (EPC)) that enforce the patents they allow the EPO to issue in their name, and they all have their own laws and courts. There has been a recent development where some of the member states entered into a unitary patent court agreement.

The EPO has widened and narrowed the scope of what it considers patentable, and that gives people trying to purposefully get a patent on something that is clearly software either more or less leeway. Obviously I'd like the EPO to be even less forgiving.

But I don't think we're going to get anywhere. The EPO neither has perfect enforcement of its no-software-patents rule, nor is it easily hoodwinked with This One Simple Trick of saying it's a hardware device. The reality is in the middle, and neither of us has a good set of comparative statistics or case studies to contrast the differing EPO and USPTO approaches, so we should probably stop.

But I stick by my original claim: I believe the reason ffmpeg and VLC have not been sued to oblivion is because they're legally based in France, where the MPEG-LA's practises aren't tolerated. The support of a "no software patents" country/government/society encouraged them to develop ffmpeg without fear; the fear we see on display here today in the USA.

[jcranmer]

> I believe the reason ffmpeg and VLC have not been sued to oblivion is because they're legally based in France, where the MPEG-LA's practises aren't tolerated. The support of a "no software patents" country/government/society encouraged them to develop ffmpeg without fear; the fear we see on display here today in the USA.

I strongly doubt that's the reason. Until recently, it was quite easy to sue anybody in your favorite court in the US on the flimsiest of grounds, and even after SCOTUS said "you need more than 'they sell things here' to establish jurisdiction and venue," the patent-friendly judge in West Texas seems to be trying his hardest not to listen. No, I suspect the reason is much simpler: an open source project doesn't hold enough money to be worth the cost it takes to litigate (on the order of millions of dollars).