[I changed the tag and subject to match the topic of discussion]
On Sep 7, 2004, at 8:43 PM, Yakov Shafranovich wrote:
Dave Crocker wrote:
My own guidance about whether to to treat an IPR claim seriously --
particularly when it includes legal filings -- is to decide whether
the claimant has the means and the resolve to pursue them.
There is definitely means here, but I am not sure about the resolve.
Somehow I don't think they will make fools out of themselves,
especially considering that the FAT patent is being challenged.
The costs of being in IPR litigation are awesome, no matter how
frivolous one might believe the claims to be.
Considering what happened to the Eolas and FAT patents, challenging a
patent is now an option as well and is much cheaper.
In any case, does this mean that anyone claiming IPR rights can stop
the standards process? That's not the reading I get from the cases of
IDN and IPSec.
My reading of the IPR situation is that the MS patent is defensive - it
ensures that they (and we) can use the technology. Their license is
positioned for maximum defensive value. I believe they (and we) would
have been better off sacrificing some of the legal defense value for
sub-licensing and more open source compatibility, but they obviously
disagree. In fairness, I'll point out that they have effectively
volunteered to pay for any patent defense that is necessary, and
perhaps can not be blamed too much for a zealous approach to preventing
litigation expense.
I suggest ignoring the patent. It's not in their interests to litigate
this kind of defensive (read: bogus) patent if they can possibly help
it - avoiding patent litigation is the entire point of defensive
patents. We'll only see litigation if someone decides to file a
competing patent claim and prevent MS (and the rest of us) from using
Sender ID. In this scenario a patent holder with deep pockets is a
desirable.
The idea that any email authentication algorithm that is not currently
encumbered will remain so in the face of something as potent as spam
prevention strikes me as a bit naive. Others have posted on the state
of the USPTO office an software patents, so I won't repeat that here. A
patent holder focused on milking the patent, rather than protecting
large and profitable businesses, would produce far worse licensing
terms. A patent holder acting on behalf of the open source community
would presumably produce a more open source friendly license. But no
patent claim is a temporary situation. We need to be realistic about
this, and I suspect MS's position in many reflects painful experience
with failing to patent things that the rest of us would call either
obvious or long standing prior art. My experience has certainly been
that it if it is useful, you need to patent it if you expect to
continue to use it.
Margaret.