You need to be aware that US Patent Laws have evolved and intentionally violating them is actionable no matter what the IETF tells you...

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That means the IETF and the Chair's role itself can be sued for this. I suggest you folks investigate this and rethink the IPR rules because this makes ISOC criminally liable for this action as a RICO claim one would think.

Folks- there is a fundamental legal breakdown with two key issues - the first is PATENTS and the IETF's Liability and the other is the abuse of the RESEARCH EXEMPTION which will not apply to anyone outside of the IETF workflow republishing anything from these mailing lists.

How this all boils down is that we have been lied to by many here who apparently want us to be legally accountable for patent and copyright damages - or they want to destroy those global IP protection schemes generally in what I call the "The world owns it because I wont pay for the fact I stole it" mindset.

The legal precedents are simple and show how incompetent the IPR WG has been in designing practices which intentionally break the law this content from the Ninth Circuit District Court's Jury Instructions book is excerpted.  This then, if there is a liability,  is most likely what your sponsors are in fact liable for.
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In the area of patent and copyright infringement, there is some authority for submitting the issue of willfulness to the jury. See, e.g., Shiley, Inc. v. Bentley Lab., 794 F.2d 1561, 1568 (Fed. Cir.1986) (applying 35 U.S.C. § 284), cert. denied, 479 U.S. 1087 (1987).

“Willful infringement carries a connotation of deliberate intent to deceive. Courts generally apply forceful labels such as ‘deliberate,’ ‘false,’ ‘misleading,’ or ‘fraudulent’ to conduct that meets this standard.” Lindy Pen Co. v. Bic Pen Corp., 982 F.2d 1400, 1406 (9th Cir.1993) (also citing cases in other circuits regarding elements of a willfulness claim). See also Committee for Idaho’s High Desert, Inc., v. Yost, 92 F.3d 814, 825 (9th Cir.1996) (the term “exceptional” in 15 U.S.C. § 1117(a) for purposes of imposing treble damages, generally means the infringement was “malicious, fraudulent, deliberate or willful”) (citing Lindy Pen Co., 928 F.2d at 1408); Nintendo of America, Inc. v. Dragon Pacific Int’l, 40 F.3d 1007, 1010 (9th Cir.1994) (where defendant willfully infringes trademark, trebling the damages is appropriate);VMG Enters. v. F. Quesada & Franco, Inc., 788 F. Supp. 648, 662 (D. Puerto Rico 1992) (treble damages granted when defendant’s infringing actions are deemed to have been made “knowingly and willfully”); Polo Fashions v. Rabanne, 661 F. Supp. 89, 98 (S.D. Fla.1986) (in absence of extenuating circumstances, profits are to be trebled where counterfeiting is intentional and knowing).

Regarding willful blindness, see Hard Rock Café Licensing Corp. v. Concession Servs., 955 F.2d 1143, 1149 (7th Cir.1992) (to be willfully blind, a person must suspect wrongdoing and deliberately fail to investigate); Chanel, Inc. v. Italian Activewear of Florida, 931 F.2d 1472, 1476 (11th Cir.1991) (willful blindness could provide requisite intent or bad faith; determination of willful blindness depends on the circumstances and will generally be a question of fact for the factfinder after trial).

A court may enter judgment for a damage award under 15 U.S.C. § 1117(a) upon a finding of willfulness as well. See Sealy, Inc. v. Easy Living, Inc., 743 F.2d 1378, 1384 (9th Cir.1984) (district court found that conduct constituted willful and deliberate bad faith infringement of plaintiff’s trademarks that was intended to and in fact did result in deception of the public); Friend v. H.A. Friend & Co., 416 F.2d 526, 534 (9th Cir.1969) (defendant’s acts must be willful and calculated to trade upon the plaintiff’s goodwill). See also Horphag Research Ltd. v. Pellegrini, 337 F.3d 1036, 1042 (9th Cir.2003) (“Exceptional cases include cases in which the infringement is malicious, fraudulent, deliberate, or willful) and Gracie v. Gracie, 217 F.3d 1060, 1068 (9th Cir.2000).
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What this finally reduces to is that we need a NEW PATENT AND IP POLICY and since all specific IETF Standards efforts come with code to implement and allow testing of the protocol in question, it is in fact a direct infringement. While the IETF is protected from these issues in publishing the documents - its members are not. And the IETF's copyright exemptions under section 107 clearly do not apply to parties publishing that information as part of their commercial offerings years later after all of that research is completed...

Sorry but reality is what it is.

Todd Glassey

-- 
Todd S. Glassey
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