At 8:10 PM -0400 10/23/07, Theodore Tso wrote:
On Tue, Oct 23, 2007 at 01:04:32PM -0700, Ted Hardie wrote:
I believe it is fairer to recognize that in your example proposal B
is known to have been patented where A is not. There is always the
chance that someone will turn out to have secured rights which they
later claim read on A. In that case it may actually be better to
choose B, knowing that the license offered works for the development
and deployment community than to choose A. In other words, a
"defensive" patent declaration by someone whose license works for
the appropriate community may actually add security. It doesn't
completely remove the risk that someone will turn up with other
rights, but it really can help.
This doesn't follow. Just because a company has patents that read on
B doesn't guarantee some other company *also* has patents that read on
B. So you can't say with certainty choosing path B is better than
path A just because a company has already declared they have patents
that read on B.
Yes, this was the case I was thinking of when I said it does not fully
remove the risk. What it can give you, though, is a company whose
interests in the patent they have been granted may cause them
to challenge later patents which read on the same technology.
I am not a lawyer, but I believe it can also go to the "willful
infringement" test. If you have a license from company A that
covers a technology and B and C are also granted patents to
the same technology (your compression algorithm case), then
I find it hard to believe that you could be found willful in your
infringements of B and C's patents. As I said, though, I'm not
a lawyer and I'd ask one before I made that statement to
a working group facing the problem.
The US Patent Office may have simply issued two patents on the
identical technology (I believe the cannonical example is the case
where three patents were issued covering the same compression
algorithm). Or there may have been other aspects of B that happened
to be patented by another company, and if it is currently owned by a
Patent Troll who has no interest in participating in the IETF process,
there is no way for the working group to know about the Patent Troll's
patents.
I don't think we even have to get to "patent troll" before we find this
problem. There are lots of folks involved in developing technology
who do not participate in the IETF. If a sound engineering company
develops a compression algorithm that turns out to be really useful
in compressing byte streams, it might get used by a WG without
recognition that the patent exists. When the coverage is later
discovered, the industry has to deal with it.
regards,
Ted
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