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From "Lawrence Rosen" <lro...@rosenlaw.com>
Subject RE: Proposal: Disclosure of patents by Apache projects
Date Fri, 22 May 2015 03:12:02 GMT
Whoa, Jim.

 

I didn't speak of a "pre-litigation notice of an infringement allegation." AFAIK, Apache Software
Foundation has never received one of those. I assume the Foundation's attorneys would take
THAT seriously and not rely just on a NOTICE file or some PMC or board member's amateur opinion.
As you would also take it seriously in your company!

 

What we're talking about here is very different: Merely limited knowledge and engineer speculation
about a specific patent. Assume that our PMC members have read the patent and they believe,
in full honesty, that it is "just plain BS, IMHO." They declare so expressly in a NOTICE file.
This is certainly no justification for willful infringement worries after In Re Seagate Technology!

 

Let's please stop scaring engineers from reading and identifying patents. There are some really
neat inventions among those.

 

The Apache member who declared this specific patent to be "BS" also admonished me directly
to "change your law ... in the US."  We did that in Seagate but someone forgot to tell the
engineers that fear of willful infringement damages at ASF is now mostly paranoia. 

 

/Larry

 

 

From: Jim Wright [mailto:jim.wright@oracle.com] 
Sent: Thursday, May 21, 2015 7:28 PM
To: legal-discuss@apache.org; Larry Rosen
Subject: Re: Proposal: Disclosure of patents by Apache projects

 

While your quotes and conclusions are, as always, thought provoking, I find them less than
reassuring in this particular case.  An accused infringer’s pre-litigation notice of an
infringement allegation is certainly relevant to the willfulness inquiry, even post Seagate
and its progeny, and lots of folks are still spending a lot of money obtaining opinions of
counsel when notified of potential infringement, both because they want to avoid any potential
claim to begin with, and because this, too, is often a factor in the court’s willfulness
calculus, even if its absence is not outcome determinative.  Consequently, I believe including
notices of alleged infringement in NOTICE files would cause a lot of needless heartache and
expense.  

 

 Best,

  Jim

 

 

On May 21, 2015, at 5:33 PM, Lawrence Rosen <lrosen@rosenlaw.com <mailto:lrosen@rosenlaw.com>
> wrote:

 

Jim Wright wrote:

> you might be placing end users in the unwanted position of suffering enhanced damages
for willful infringement by providing the notices you suggest

 

Hi Jim,

 

Let's not frighten developers and distributors with old fears. I'm not worried about you suffering
willful damages merely because we identify the existence of a patent.

 

Willful infringement (treble) damages awards are getting much rarer. It now requires "at least
a showing of objective recklessness ... [that] was either known or so obvious that it should
have been known to the accused infringer."  Take a look at In Re Seagate Technology,   <http://www.cafc.uscourts.gov/images/stories/opinions-orders/M830.pdf>
http://www.cafc.uscourts.gov/images/stories/opinions-orders/M830.pdf. The CAFC also reemphasized
that "there is no affirmative obligation to obtain opinion of counsel."

 

And from Thomas Gray's poem, Ode on a Distant Prospect of Eton College (1742): "Thought would
destroy their paradise. Where ignorance is bliss, 'tis folly to be wise."  <http://www.thomasgray.org/cgi-bin/display.cgi?text=odec>
http://www.thomasgray.org/cgi-bin/display.cgi?text=odec

 

/Larry

 

 


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