How can a description of how to use a technology infringe on a patent?
A standard isn't merely a description, as in a magazine article, but
also represents an industry agreement on the definition of a product. A
draft or WG could encourage persons to violate a patent, which is
indirect infringement. A draft or WG could define a product that is a
contributory infringement on a patent. The working group must take care
not to do these things.
As I said before, I agree with Atty Rosen's position and I hope it will
prevail, I have run into lawyers who assert that source code
distribution does infringe a patent.
In the source code distribution examples that I know of, the
distributors were very clear about the existance of patents in certain
jurisdictions, and therefore seemed to have prudently (I would hope
sufficiently prudently) avoided indirect infringement. But it also
seems indisputable that there are indeed scenarios of imprudent actions
which could invoke indirect or contributory infringement.
There doesn't seem to be any basis for the assertion that it is entirely
impossible for the IETF to ever engage in indirect or contributory
infringement, no matter what actions it undertakes or how imprudent
those actions are. So I think the IETF must define policies so to avoid
the scenarios of imprudent actions.
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