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From "Lawrence Rosen" <lro...@rosenlaw.com>
Subject RE: Proposal: Disclosure of patents by Apache projects
Date Tue, 02 Jun 2015 20:06:46 GMT
Roy Fielding wrote:

> ALv2 covers our software products, not our disclosures.

 

ALv2  and its disclaimer of warranties covers our entire copyrighted
aggregations including our NOTICE files. :-)  The rest of what you say is
true: "Any statement we might make is evidentiary for both us and our
downstream recipients." That is why I assume that everything I say on a
public email list is really CC-BY 4.0 and subject to a free subpoena.

 

> Many of us are qualified when supplied with the complete

> patent history and definition of terms. A few are even

> allowed to do so by their employers (or lack thereof).

 

Indeed so. VERY qualified, and have earned respect in their companies and
within Apache and in court sometimes also to speak their minds. 

 

But courts don't expect that most of what random technical experts say early
in the day is by itself of much legal value to determine the knowledge
requirement for inducing infringement. As you said, you would need to be
supplied with "the complete patent history and definition of terms." Nobody
contributing at ASF is required to read and determine that stuff no matter
their qualifications to do so. 

 

For example, the recent CAFC case I posted here (Info-Hold v. Muzak
<http://cases.justia.com/federal/appellate-courts/cafc/14-1167/14-1167-2015-
04-24.pdf?ts=1429887716> ) said that even the parties' experts and attorneys
wouldn't have had a meaningful opinion about infringement until the court
determined what the claims meant in saying "when a caller is placed on
hold." (Read that part of the decision; it is fun proof of what many here
believe about the confusing language in patents.) The parties stipulated in
District Court that most of Info-Hold's patent claims couldn't apply at all
based on that definition. I assume that experts like you helped the parties
come to that agreement. Nobody else can!

 

To the rest of us in Apache projects, though, your expert opinions about
patents are what matters most. So when one of our respected members says
"this patent is BS, IMHO" then I am likely not to be worried tonight. I
would much wish that he had said something of more technical value, and that
he was willing to say it aloud in a NOTICE file that bears no ASF
warranties. But regardless, his comment by itself will not result in any
willful infringement damages to Apache or anyone else.

 

Note also that the CAFC sent the Info-Hold case back to District Court to
factually determine whether there was "willful blindness":

 

This record raises issues of material fact as to whether Muzak may have
subjectively believed there was a high probability it infringed the '374
patent and took deliberate actions to avoid learning whether it actually
did. In other words, the record raises the issue of whether Muzak willfully
blinded itself to whether it acted to induce infringement after becoming
aware of the existence and alleged functionality of the '374 patent. See
Global-Tech, 131 S. Ct. at 2070. Therefore, we vacate the district court's
grant of summary judgment of no induced infringement and remand for further
consideration on the issue of Muzak's willful blindness.

 

In every other respect, Roy, I appreciate hearing your objections to a
revised policy regarding the reasonable disclosure of patents in a NOTICE
file. Many agree with you on that point. I hope not all. 

 

/Larry

 

 

From: Roy T. Fielding [mailto:fielding@gbiv.com] 
Sent: Tuesday, June 2, 2015 10:43 AM
To: ASF Legal Discuss
Subject: Re: Proposal: Disclosure of patents by Apache projects

 

On May 31, 2015, at 3:20 PM, Lawrence Rosen <lrosen@rosenlaw.com
<mailto:lrosen@rosenlaw.com> > wrote:

 

[Responses to three board members in one email.  :-)  ]

 

Greg Stein wrote:

> Thus, to water out random claims of infringement from random developers,
we must wait until the patent holder *informs* us that we (likely) infringe.
Until the patent holder wants to assert that, then I don't think we're
qualified to make *any* judgement, including whether it is
important/relevant to provide notice.

 

Nobody is concerned about "random claims of infringement from random
developers." Or rather, "if you are concerned about such a claim, then say
so in the NOTICE file. If not, move it to the trash." Nothing more is
required from ASF or its members and contributors. I would ask only for open
disclosure within Apache projects of patents that seem interesting to the
project PMC itself. 

 

There is no risk to ASF from such disclosure. Under ALv2, disclosures of
potentially relevant patents come with no warranties from ASF. 

 

ALv2 covers our software products, not our disclosures. We are just as
liable for our statements as any human being, and any statement we might
make is evidentiary for both us and our downstream recipients.

 

 ASF offers *NO* judgements of importance or relevance about patents. None
of us is qualified for that.

 

I don't understand why you keep saying that. Many of us are qualified when
supplied with the complete patent history and definition of terms. A few are
even allowed to do so by their employers (or lack thereof).

 

I know that we're not stupid here. All I'm suggesting is that we document
our intelligence in our NOTICE file so that our customers can verify it for
themselves if they want to.

 

I suggest that would be stupid and non-productive, since it would only
benefit and encourage trolls. In any case, doing so would never happen in
the NOTICE file, which contains notices that are a binding part of our
copyright license (i.e., NOTICE has nothing to do with patents, known or
not).

 

....Roy


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