[yason]

FPGAs? Is an algorithm implemented on a FPGA a software or hardware implementation?

FPGA is pretty much general purpose metahardware. It's programmable so you could program it to be any chip, thus not covered by the effects of a patent.

Sufficiently popular software algorithms like mpeg4 (including avc) are often implemented in ASICs for speed. Stallman's suggestion does nothing to help in those cases.

If you're manufacturing or buying dedicated hardware to do one specific task well I don't see why would patents need not apply? The codec chip is clearly a "hardware machine", not a general purpose processor. It's something I imagine companies are prepared to pay license fees for. Further, nobody will accidentally use a MPEG4 hardware decoder in some device they make which is a different situation from how the accidental problems manifest in software.

[alanctgardner2]

You could accidentally create a patented algorithm in hardware just as easily in hardware. The trick is that you wouldn't be designing an 'MPEG4 hardware decoder', but you'd think 'oh, wavelet compression in an ASIC, how novel'. Then you'd be infringing the patent. It's not an issue of accidentally using, it's more an issue of accidentally developing in parallel.