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 _______________________________________________ Ietf@xxxxxxxx https://www1.ietf.org/mailman/listinfo/ietf