--On Wednesday, 11 April, 2007 09:43 -0400 Theodore Tso
<tytso(_at_)mit(_dot_)edu> wrote:
On Wed, Apr 11, 2007 at 01:54:53PM +0200, Brian E Carpenter
wrote:
...
My assumption is that they care if the party that fails to
send a postcard is one of their competitors. That's what the
defensive clauses in these licenses are all about, afaics.
I was thinking about your response, and I wonder if we might be
talking past each other. The concern that I think a number of
raising about "send a postcard" specifically about patent
licenses which are not sub-licensable, so that each individual
end-user has to request their own individual patent license.
...
We could construct some really extreme ways such a "Royalty
Free" license could be worded that illustrates how our lack of
definition of "Royalty Free" in the IPR disclosure template
could come back to haunt us. Suppose a company declared that
they would make a "Royalty Free" license available. If they
subsequently published the the following, at which point would
it be construed that they had violated the IPR declaration (of
which I hope some lawyer has commented about whether or not it
is legally binding)?
...
If the answer is that a company could declare in an IPR
declaration that they are offerring an Royalty Free license,
and not make any promises for offerring RAND terms, and then
could offer their patent under the above license without
sufferring any legal consequences, I'd argue we have a
significant hole in our processes.
Ted, jumping ahead a little bit, how much of your concern would
be eliminated if that entry in the template said "Royalty Free
and RAND" (or "RAND and Royalty Free"), rather than just RF? I
agree that "RF and totally unreasonable" is a possible case, but
am trying to understand whether we have a disconnect about the
language we have used or about some general and important
principle?
I would ask just about the same question about questions of
revocability. Independent of what the other provisions are,
should we insist that any grant of rights incorporated in an IPR
disclosure be permanent and irrevocable, or at least permanent
and irrevocable in the absence of specific violation of other
terms? How much of your concern would that eliminate?
john
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