Re: [License-discuss] Disclosure of patents by Apache projects

[John Cowan]

Lawrence Rosen scripsit:

> I read the CAFC decision you referenced in
> your email: SSL Services, LLC v.  Citrix Systems
>  dt=6&as_vis=1&oi=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
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Re: [License-discuss] Disclosure of patents by Apache projects

[Lawrence Rosen]

John Cowan wrote:
> 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.


On the other hand, see http://en.wikipedia.org/wiki/Willful_blindness: 

"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.

"For example, in a number of cases, persons transporting packages containing
illegal drugs have asserted that they never asked what the contents of the
packages were and so lacked the requisite intent to break the law.

"Such defenses have not succeeded, as courts have been quick to determine
that the defendant should have known what was in the package and exercised
criminal recklessness by failing to find out.

"A famous example of such a defense being denied occurred in In re Aimster
Copyright Litigation, 334 F.3d 643 (7th Cir. 2003), in which the defendants
argued that the file-swapping technology was designed in such a way that
they had no way of monitoring the content of swapped files. They suggested
that their inability to monitor the activities of users meant that they
could not be contributing to copyright infringement by the users. The court
held that this was willful blindness on the defendant's part and would not
constitute a defense to a claim of contributory infringement."



-Original Message-
From: John Cowan [mailto:co...@mercury.ccil.org] 
Sent: Sunday, May 24, 2015 9:39 PM
To: lro...@rosenlaw.com; license-discuss@opensource.org
Cc: 'Legal Discuss'
Subject: 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=9194570733323971805&hl=e
> n&as_s dt=6&as_vis=1&oi=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

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Re: [License-discuss] Disclosure of patents by Apache projects

[John Cowan]

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
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Re: [License-discuss] Disclosure of patents by Apache projects

[jonathon]

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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
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