I must say I couldn’t agree with you more! It would be nice indeed if companies would send each others such emails first, instead of starting a lawsuit right away. Certainly a some form of warning to try and find an agreement before going to court would be preferable to expensive and harmful lawsuits that often hurt us all in the end, by creating a culture where everything has to be resolved in court and where the end user eventually ends up paying the price by picking up the tab of lawsuits in the form of higher costs of products and services and delayed progress.
Who knows… there may even be draconian laws which would not make it possible to proceed in the way Dags suggested, even if a company would want to do so. For such non-litigious way to become a reality, some kind of reform to the entire body of laws on patenting may need to be done first.

I believe that proceeding to warn first and then followup with a proposal to meet and discuss the alleged infringement, would be a far better option for all parties involved. The advantages of trying to first resolve a dispute over an infringement using mediation over lawsuit are self evident and hard to argue (unless one is a patent troll that is). Sadly mediation does not seem to be the current practice, probably because it would not allow patent law firms to maximize their revenue because mediation would make them pennies, while lawsuit will shower them with gold.

Mediation could lead to reaching an agreement where a company that realized they committed a patent infringement not even being aware of it, would agree to apologise and pay a licensing fee or share revenues with the patent holders. That would allow the patent holders to capitalize on their intellectual property and be compensated for it while keeping both companies in business and possibly even allowing both to be mutually beneficial to each others success.
Only failure to reach an agreement between the parties would trigger a lawsuit… therefore quite obviously the initial mediation attempt, does not cancel the possibility of lawsuit, but, by first trying to settle a potential patent infringement in a non litigious manner, would mean that lawsuits should always be the last resort rather than being the very first.

I absolutely agree that companies must remain entitled to defend intellectual property and that nobody should be allowed to unfairly monetize other people’s ingenuity if they have no right to do so… and if something like that was in place over a century ago, it may have avoided quite a few heartaches to poor Tesla and at the same time it would have allowed him continue to bring into this world more of those precious products conceived by his absolutely awesome mind… but I digress.

Before my next statement, I have to first point out that I am not even remotely hinting that Adobe or Macromedia may have ever considered to go down that path. That said: I despise patent trolling and I believe that the patenting system, in the way that it’s been currently set up, does more harm than good. The way it’s being used now, it only hampers progress when it doesn’t completely bring it down to a grinding halt. What could be a much faster process of inventing and improving upon inventions with a mutual cooperative environment, has been instead reduced to a bureaucratic battlefield where progress is immensely delayed (when not completely stopped) by the current litigious system where those who benefit most are patent trolls, legal firms and the ecosystem built around it… In other words a system that would be praised by all Vogons of planet Vogspehere.

The sad part here is that there is no interest in reforming the current patenting system and to what extent a patent holder can prohibit or limit use. What’s worst is that leaving the patent system as is, we all loose in the long run. How about allowing to patent, but limiting guaranteed exclusivity only for the first few years and then making it mandatory to provide licensing options via licensing agreements, or via per-use royalties?

Even pharmaceutical companies are not allowed to patent their formulas forever. And that’s one of the most regulated industries, certainly far more than software is. Whether one like or dislikes pharmaceutical companies is beyond scope here, what matters is that from a patenting standpoint, those companies are allowed a limited timeframe for ROI, after which they must release the original formula so it can be produced as a cheaper generic product (which continues earning royalties for the company although at fraction of the revenue while the product was under exclusivity patent)… every now and then there is a Jonas Salk, but that’s the exception.

To be clear, I am not suggesting that software company should give away their intellectual property for the good of mankind… but I would think that there could be a better way to make use of creative energy and brainpower than to wast it all in litigations and lawsuits. Why should not be possible to find an agreement? Where there’s a will there’s a way.

There should be no full patents lasting forever, where a patent holder could deny it to the world even after hundreds of years. Limited exclusivity for first few years, license/royalty based revenue for a further number of years following exclusive rights, and possibly open source it after a longer period.
A system working in such way, should sound fair for patent holders and I am referring to reasonable people, not endlessly greedy ones who would be satisfied only by forever patents.
Fair patenting laws and regulations, would allow patent holders to be properly protected while keeping at bay the complacency which could arise when feeling entitled to be able to own patents indefinitely and simply sit on the laurels, reaping benefits that at a certain point will start becoming unfair and that will eventually become even harmful to a healthy, creative and inventive environment since for each new idea there would be a “can’t be done”, because of a patent prohibiting one thing or another for hundreds of years. But perhaps most importantly a fair system would help minimize unnecessary litigations and will help foster a higher and continuous motivation to move progress and innovation forward at a much faster pace.

I may even be delusional, but I believe that a fair patenting system would be a win/win situation for everyone (unwelcome only to greedy companies) and would not even be so impossible to achieve if only there was a will to do so.

(You may say I am a dreamer, but I am not the only one…)

Thanks for the interesting article and info, keep up the good work Jesse.
Cheers

@Randy Yeah, sorry, was 3 Guinness’s in when writing that part.

What if a client asks you tomorrow if you could 100% recommend Wowza for an upcoming project in the light of this suit? If you are honest you couldn’t until the issue is settled and cleared up.
Even if they settle out of court it could easily push Wowza’s price up if they have to pay license fees to Adobe for every copy sold. Does that suck? Oh yes it does.