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From "Lawrence Rosen" <lro...@rosenlaw.com>
Subject Re: Adoption of new Software and Document License
Date Sat, 06 Jun 2015 20:28:40 GMT
[Someone asked me a good off-list question about the new W3C Software and
Document License. Here is my on-list response, which is offered with no
warranty nor as attorney-client advice. Ask your own attorney!]


If Apache members or customers are much worried about liability for
contributory patent infringement merely by redistributing some Apache
software, read the below quotation from the 2014 Jury Instructions of the
Federal Circuit Bar Association (and the cases listed there). 


It seems that the distributor of an ASF software product that implements a
widely-used, patent and copyright royalty-free W3C standard is not likely to
be held liable as a contributory infringer for other miscellaneous patents
that we later discover happen to read on that software. 


That's usually good for ASF and distributors! 


And it is another good reason to "advertise" in our NOTICE file that our
software implements specific FOSS-compatible W3C standards capable of
substantial non-infringing uses, in compliance with the new W3C license. 




>From http://www.modeljuryinstructions.com/tag/contributory-infringement/: 



[Patent holder] argues that [alleged infringer] is liable for contributory
infringement by contributing to the direct infringement of the [ ] patent by
[insert name or other description of direct infringer]. As with direct
infringement, you must determine contributory infringement on a
claim-by-claim basis.

[Alleged infringer] is liable for contributory infringement of a claim if
[patent holder] proves by a preponderance of the evidence:

(1)               [alleged infringer] sells, offers to sell, or imports
within the United States a component of a product, or apparatus for use in a
process, during the time the [ ] patent is in force;

(2)               the component or apparatus has no substantial,
noninfringing use;

(3)               the component or apparatus constitutes a material part of
the invention;

(4)               [alleged infringer] is aware of the [ ] patent and knows
that the [products or processes] for which the [component or apparatus] has
no other substantial use may be covered by a claim of  the [ ] patent or may
satisfy a claim of the [ ] patent under the doctrine of equivalents; and

(5)               that use directly infringes the claim.

In order to prove contributory infringement, [patent holder] must prove that
each of the above requirements is met. This proof of each requirement must
be by a preponderance of the evidence, i.e., that it is more likely than not
that each of the above requirements is met.


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