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From John Cowan <co...@mercury.ccil.org>
Subject Re: [License-discuss] Disclosure of patents by Apache projects
Date Mon, 25 May 2015 04:39:12 GMT
Lawrence Rosen scripsit:

> I read the CAFC decision you referenced in
> your email: SSL Services, LLC v.  Citrix Systems
> <https://scholar.google.com/scholar_case?case=9194570733323971805&hl=en&as_s
> dt=6&as_vis=1&oi=scholarr> , 769 F.3d 1073 (Fed Cir. 2014). Even though
> willful damages were awarded there, I don't think it makes the argument
> for you.

I'm not sure what argument your interlocutor is making here.  I think,
however, that it does not exclude *my* argument that reading patents is
dangerous, though I agree it doesn't compel it either.

> As in all willful infringement cases, facts matter. Citrix was not
> allowed to use its own Chief Engineer's expert opinions about the
> patent to justify its opinion about non-infringement. ("As for Murgia's
> personal beliefs regarding non-infringement, the fact that they were
> beliefs formed by a lay person without the benefit of the court's
> claim construction determinations rendered them of little probative
> value and potentially prejudicial.")

Doubtless.  But the key point is that Citrix knew about SSL's patent
and thought it didn't apply, and the Patentees' Circuit found that that
didn't exclude a finding of wilful infringement on the subjective prong.
(The terms "objective" and "subjective" are IMO misapplied, but let
that go.)  However, if Citrix *had no actual knowledge* of the
'011 patent, I think it would have been much more difficult for SSL
to establish the other subprong of the subjective prong, that the
infringement was so obvious that Citrix should have known about it.

> None of this even hints that an engineer reading a patent and commenting
> on it in a NOTICE file is a risky behavior.

I think it does hint at it, for the reason I give above.

John Cowan          http://www.ccil.org/~cowan        cowan@ccil.org
Not to perambulate the corridors during the hours of repose
in the boots of ascension.       --Sign in Austrian ski-resort hotel

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