Your no true Scotsman fallacy is showing you don't even know what a Scotsman looks like. Virtually 100% of patent holders sit on all their patents for the entire duration of the patent.
That's because virtually 100% of patent holders use their patents defensively.
waiting for the patented technology to be ingrained in the industry
Dolby actively used their patents and actively defended them. They created that technology and marketed it heavily. They didn't sit around and wait. Just because they make most of their money from licensing doesn't make them a patent troll any more than every university in the world is suddenly a patent troll by your definition.
You missed the part where they knowingly allowed a patent to become part of a published open standard and ignored it for an entire decade, *then* started going after violations.
Oh, actually, it's worse than that. Dolby acquired these patents from General Electric two years ago. So in this matter, they quite literally ARE patent trolls. They did nothing to create this technology, but rather bought the patents to enrich themselves by becoming a leech on the industry now that companies are abandoning their codecs in favor of codecs whose encoders don't involve royalties.
Yes, but using them offensively after sitting on them violates the doctrine of Laches.
This isn't offensive. By all accounts their licensed product has been taken without a license paid.
You obviously don't understand patent law terminology, so let me give you a refresher:
- Defensive use of patents - patents held until someone sues you, then used to retaliate and make the other company's lawsuit more expensive and complex, usually resulting in a cross-licensing agreement.
- Offensive use of patents - suing someone else over the patent without having been previously sued by that someone else.
Suing multiple companies for violating a patent without getting sued first is the very definition of offensive use of a patent.
In effect, they sat on the patents so that people would end up depending on AV1
Congrats on falling into a vortex of ignorance. Headlines are fun to latch on to, especially useless ones likes Slashdot headlines. Dolby isn't suing Snapchat for AV1. Dolby is suing Snapchat for not paying HEVC license. AV1 is just caught up in as a listed example due to Snapchat's HEVC-AV1 transcoder being one of the infringing items on the docket.
Those are actually separate lawsuits. (See link above.) The AV1 lawsuit is suing to stop them from using AV1 and force them to use a Dolby-licensed codec. They're also suing a Chinese hardware maker over AV1 at the same time.
At this point, it would be entirely reasonable for a judge to declare that because they failed to act against AOMedia
That's not how the law works. AOMedia has infringed zero patents. You can't infringe a patent by creating an algorithm and publishing it online. If that were the case you may as well say the US Patent Office is infringing patents. Businesses using products infringe patents.
The hell you can't. Patent infringement occurs on creating an instance of an invention. The moment they create source code for the software (an instantiation of the patent), they have violated the patent. It doesn't have to be instantiated into hardware or used by a business to be a violation. The patent violations began when AOMedia distributed the first beta versions a decade ago. The original patent holder (GE) did not sue.
To be fair, the reference implementation may not have been directly created or distributed by AOMedia, in which case the same applies, but to whatever company actually created and distributed it. This is largely an unimportant detail.
Businesses using products *also* infringe patents, which IMO, is a bad thing, but that's a separate discussion.
they lost their right to sue AOMedia for damages in creating the patented technology
Literally no one is suing AOMedia.
You literally didn't understand what I said.
Patent exhaustion occurs when a product is sold by someone who has the right to sell something that violates a patent, which typically means that either they own the patent or they paid licensing fees. It prevents someone from then suing downstream customers. And there is a six-year statute of limitations on suing over a patent violation. What I'm arguing is that:
- Distribution of open source software effectively occurs exactly once per version, because the redistribution permission inherent in open source software makes it impossible to determine whether a copy of the software was obtained directly from the creator on a particular date or from someone else who previously got it from the creator.
- Open source distribution is effectively a sale for patent purposes, just at zero cost.
- That sale occurred a decade ago when AOMedia distributed the reference implementation.
- Because no objection was made to that sale (against AOMedia) during the statutorily limited 6-year period, that sale should be considered to be an authorized sale, in which case patent exhaustion occurred on the results of that sale.
- All copies of the original reference implementation and their derivatives are therefore untouchable.
This is a legal theory. To my knowledge, it has never been tested in court, largely because companies do not do what Dolby is doing, suing companies for using open source reference implementations or their derivatives nearly a decade after their release. And it should be clear that this theory applies only to patents in the context of software.
