Re: [License-discuss] Disclosure of patents by Apache projects
-BEGIN PGP SIGNED MESSAGE- Hash: SHA1 On 24/05/2015 21:54, Lawrence Rosen wrote: At least in the open source community, let's please take advantage of this relief provided us by the CAFC in Seagate. Open source engineers should be free to read and write whatever they want about patents. It can't hurt. For programmers, the issue is when the final, limiting clause of the patent ^1 is akin to the following: «It should be understood that the routines, steps, processes, or operations described herein may represent any module or code sequence that can be implemented in software or firmware. In this regard, these modules and code sequences can include commands or instructions for executing the specific logical routines, steps, processes, or operations within physical components. It should further be understood that two or more of the routines, steps, processes, and/or operations described herein may be executed substantially simultaneously or in a different order than explicitly described, as would be understood by one of ordinary skill in the art. ... It should be emphasized that the above-described embodiments are merely possible examples of implementations, merely set forth for a clear understanding of the principles of the present disclosure. Any process descriptions or blocks in flow diagrams should be understood as representing modules, segments, or portions of code which include one or more executable instructions for implementing specific logical functions or steps in the process, and alternate implementations are included in which functions may not be included or executed at all, may be executed out of order from that shown or discussed, including substantially concurrently or in reverse order, depending on the functionality involved, as would be understood by those reasonably skilled in the art of the present disclosure. Many variations and modifications may be made to the above-described embodiment(s) without departing substantially from the spirit and principles of the present disclosure. Further, the scope of the present disclosure is intended to cover any and all combinations and sub-combinations of all elements, features, and aspects discussed above. All such modifications and variations are intended to be included herein within the scope of the present disclosure, and all possible claims to individual aspects or combinations of elements or steps are intended to be supported by the present disclosure. » In as much as I've come across at least half a dozen patents, whose final clause is what I consider to be a very close paraphrase of that wording, especially the last two or three sentences, the only thing that Seagate does, is imply that any alleged infringement might not meet the requirements for willful infringement, and hence not subject to triple damages. It still doesn't protect the programmer who implements something, without having a clue that the USPTO granted a patent on something that is vaguely similar to what was implemented, and hence, potentially infringing on a patent whose final, limiting clause, is the overarching reach of the last five sentences from the patent that I quoted here. ^1: For some dumb reason, I didn't write down the patent number this specific example came from. (In the blog in which I rant against this specific patent, I list four or five patent numbers of other things that I consider to be non-inventions, but the USPTO duly granted a patent on. ) I am not a lawyer. This is not legal advice. I'm only the guy who has been threatened with lawsuits for patent violations, copyright violations, and other intellectual property violations, by parties who have never seen the allegedly infringing vapourware. jonathon -BEGIN PGP SIGNATURE- Version: GnuPG v2.0.22 (GNU/Linux) iQIcBAEBAgAGBQJVZn/dAAoJEE1PKy9+kxpl+mIP/2UwUc7q3fUBZ1CO/sxJl0y/ yedXxLqyz026GMtL8imdzm8vCCLCPtQTPwZP+9aGCOZBFhpqa2OufO6b7iaoGatD O4Df1IifEcfv1e19y/awZ5X9QNO9bNJdIOEyobfnPSpLRAFxv9F1i/Ppv6gPKHfo X948rrtn+1ls1DYAcAHQCITYnY+mPzCqd4/cj53VcvgfgKE6aKNkYZxHO4Aj8ga/ FT6kGXyCtYsTPiv392CiBnP5I5I7SAMVBfHZsaYF4fJGPnpR5ado/j/t3kxSBTWq tTtmTUot1gyY9NLfnp4nJbJWq+2CJwjSTxEuwLus2P8pjiexUKXKLKApS9hl1VJF gsRDdz4Qd079nO25YchysObWIAk1b1vUg3N/yHkXW+CM+13NRxVUkiL9o2MKNwSx qHol4fnXo2VLesWK/QWz4agcgZ/zU3UMpk3En2qtJU5ach7QnoqaZOgZUmRHReQA APAN35cLXFeMqcQUMV3iOmE32CAi9H6n+HOj+Gut79WndVdTQPH4fVLlM0QleL9b ivx32vuIZHyMvhUkr8vJlUxCgpqklgmdRcZ98SAz9F/4s2i6J+TRVKKZq5lo/j2g Oa3aCzsEcHeKKVLKInIzOj7p3q41tyTHcAeqNWgrEAf3jV7ApTicuVp0qqJQhDa4 C6RFfmsOj3/lQiJaGJNy =lJVS -END PGP SIGNATURE- ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] Disclosure of patents by Apache projects
Lawrence Rosen scripsit: Willful blindness (sometimes called ignorance of law, willful ignorance or contrived ignorance or Nelsonian knowledge) is a term used in law to describe a situation in which a person seeks to avoid civil or criminal liability for a wrongful act by intentionally putting him or herself in a position where he or she will be unaware of facts that would render him or her liable. Does this mean that before taking action of any sort there is an affirmative duty to seach the entire patent registry to make sure that the idea you just had isn't in there? Surely not. I don't have a proper citation for this, but back in the 1920s _Time_ magazine was sued by a Florida lady for saying that her husband had divorced her rather than that she had divorced her husband. At the time, Florida law specified adultery as the sole ground of divorce, so she claimed that the error was a libel _per se_. The Supremes decided that while all men are presumed to know the law (for it is an excuse that every man will pleaed, and no man know how to refute), there was no reason for a New York corporation to know Florida law as well as all that. -- John Cowan http://www.ccil.org/~cowanco...@ccil.org I amar prestar aen, han mathon ne nen,http://www.ccil.org/~cowan han mathon ne chae, a han noston ne 'wilith. --Galadriel, LOTR:FOTR ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
[License-discuss] Disclosure of patents by Apache projects
[cross-posted to legal-discuss@apache and license-discuss@opensource] [The below is my response to someone else's email on another list. It is rather legal/technical, but some of you may now understand why I'm not as afraid of patents as I used to be. I'd like to calm some of you down also and to encourage engineers to be free to read and comment on patents in a NOTICE file. I know that some corporate patent attorneys differ on this. Please speak up. For speed readers there is a two short paragraph conclusion at the very bottom. /Larry] * Posting about willful infringement (treble damages) and reading patents The important CAFC case, In re Seagate Technology, http://www.cafc.uscourts.gov/images/stories/opinions-orders/M830.pdf 497 F.3d 1360, 1369 (Fed. Cir. 2007), articulated a two-part test for willfulness in patent infringement: [T]o establish willful infringement, a patentee must show by clear and convincing evidence that the infringer acted despite an objectively high likelihood that its actions constituted infringement of a valid patent. The state of mind of the accused infringer is not relevant to this objective inquiry. If this threshold objective standard is satisfied, the patentee must also demonstrate that this objectively-defined risk . . . was either known or so obvious that it should have been known to the accused infringer. I read the CAFC decision you referenced in your email: SSL Services, LLC v. Citrix Systems https://scholar.google.com/scholar_case?case=9194570733323971805hl=enas_s dt=6as_vis=1oi=scholarr , 769 F.3d 1073 (Fed Cir. 2014). Even though willful damages were awarded there, I don't think it makes the argument for you. As in all willful infringement cases, facts matter. Citrix was not allowed to use its own Chief Engineer's expert opinions about the patent to justify its opinion about non-infringement. (As for Murgia's personal beliefs regarding non-infringement, the fact that they were beliefs formed by a lay person without the benefit of the court's claim construction determinations rendered them of little probative value and potentially prejudicial.) Plaintiff SSL proved its willful infringement case, basing its evidence on the Seagate standards. (We agree that SSL presented substantial evidence that Citrix knew of the objectively high risk that its products infringed the asserted claims of the ′ 011 Patent.) Citrix was proven to have entered into other written agreements that specifically identified and incorporated that patent previously. (We do not find that the district court erred in denying Citrix's motion for JMOL on the subjective prong of SSL's claim of willful infringement.) The Iowa Law Review article you referenced [Christopher Seaman, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1751831 Willful Patent Infringement and Enhanced Damages after In re Seagate: An Empirical Study, 97 Iowa L. Rev. 417 (2012)] was also very interesting. I didn't know most of that history of the willfulness doctrine and, as Seaman describes it on page 428, how it resulted in In re Seagate: The Rise of Objective Recklessness. The empirical study by Seaman used the results of patent cases three years post-Seagate, through July 2010. He only included district court cases and no CAFC appeals. It is of limited empirical value. There's a more recent online article: Halo v. Pulse http://www.ipwatchdog.com/2015/01/29/halo-v-pulse-progress-on-willful-infri ngement-law-at-risk/id=54284/ - Progress on Willful Infringement Law at Risk? published last January. That author, Bart Eppenhauer, acknowledges that Seagate is working and he urges the CAFC to otherwise refrain from disrupting the progress made with Seagate. Then, on March 23, the CAFC denied Halo's petition http://patentlyo.com/media/2015/03/13-1472.Order_.3-18-2015.1.pdf for rehearing en banc. :-) CONCLUSION: None of this even hints that an engineer reading a patent and commenting on it in a NOTICE file is a risky behavior. At least in the open source community, let's please take advantage of this relief provided us by the CAFC in Seagate. Open source engineers should be free to read and write whatever they want about patents. It can't hurt. /Larry snip ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] Disclosure of patents by Apache projects
Lawrence Rosen scripsit: I read the CAFC decision you referenced in your email: SSL Services, LLC v. Citrix Systems https://scholar.google.com/scholar_case?case=9194570733323971805hl=enas_s dt=6as_vis=1oi=scholarr , 769 F.3d 1073 (Fed Cir. 2014). Even though willful damages were awarded there, I don't think it makes the argument for you. I'm not sure what argument your interlocutor is making here. I think, however, that it does not exclude *my* argument that reading patents is dangerous, though I agree it doesn't compel it either. As in all willful infringement cases, facts matter. Citrix was not allowed to use its own Chief Engineer's expert opinions about the patent to justify its opinion about non-infringement. (As for Murgia's personal beliefs regarding non-infringement, the fact that they were beliefs formed by a lay person without the benefit of the court's claim construction determinations rendered them of little probative value and potentially prejudicial.) Doubtless. But the key point is that Citrix knew about SSL's patent and thought it didn't apply, and the Patentees' Circuit found that that didn't exclude a finding of wilful infringement on the subjective prong. (The terms objective and subjective are IMO misapplied, but let that go.) However, if Citrix *had no actual knowledge* of the '011 patent, I think it would have been much more difficult for SSL to establish the other subprong of the subjective prong, that the infringement was so obvious that Citrix should have known about it. None of this even hints that an engineer reading a patent and commenting on it in a NOTICE file is a risky behavior. I think it does hint at it, for the reason I give above. -- John Cowan http://www.ccil.org/~cowanco...@ccil.org Not to perambulate the corridors during the hours of repose in the boots of ascension. --Sign in Austrian ski-resort hotel ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
[License-discuss] Disclosure of patents by Apache projects
Elsewhere on internal Apache member email lists we've been discussing a patent that may or may not apply to Apache software. I already quoted publicly the strongly-held opinion of one Apache member that this patent is just plain BS, IMHO. He may be right. My concern is that Apache members are not qualified to make this determination about any patent. Nor is the Apache Software Foundation resourced to do that analysis professionally for our users. However, I believe that ASF is obligated to disclose whatever patent information comes to our developers' and members' attention. This is one of the key purposes of a NOTICE file in open source software. Others disagree strongly. Here is what Roy Fielding wrote on a public Apache list on 27 Mar 2012: http://s.apache.org/B3F. I quote part of it now: It has been discussed. This idea is the moral equivalent of pointing a gun at our user while saying that it is most likely unloaded. It simply isn't done. Adobe has not asked for it to be done. The only company that has ever asked for it to be done is Sun, and we not only refused to do so -- we exited the entire Java community process because of it. So, the answer to your suggestion is well known. Sam knows that answer. He does not need to discuss it with you or anyone else because there is already a long history behind it and a board precedence. We do not notify our users that an unspecified patent might possibly be owned by some third-party based on a theoretical reading of a patent license on a specification that we don't even implement. If that third-party identifies a specific patent AND indicates that the patent might apply to our product, then we would include information about that in a README file (assuming we didn't kill the product outright). As a non-patent but practicing attorney, I don't believe I'd ever personally recommend that we kill an international Apache project outright simply because someone pointed a US patent gun at it. On the other hand, we have a NOTICE file and we owe our customers whatever the facts are. I'm looking for agreement by Apache customers to this NOTICE policy in a very antagonistic, patent-hating and unfriendly Apache community that takes such discussions personally, like religion. /Larry ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
