On Tue, 6 Jul 2010, Paul Davis wrote:
On Tue, Jul 6, 2010 at 8:02 AM, Erik de Castro Lopo
<mle+la@xxxxxxxxxxxxx> wrote:
Paul Davis wrote:
please do not post patent abstracts to this or any other mailing list.
US law poses no requirement on an "inventor" to perform a patent
search, and a provable lack of awareness of existing patents does have
a small but definite impact on the legal result of an infringement.
This is in direct contradiction to the advice Andrew Tridgell (one
of the lead Samba developers):
http://news.swpat.org/2010/03/transcript-tridgell-patents/
Tridgell's argument is that a project is going to get killed by a
patent infringement anyway, so you may as well figure out what's out
there to be as best prepared as possible. I don't think he's wrong -
rather, there are different ways to tackle the issue. In the case of
the (absurd) apple patent that was cited, I have to believe that any
infringment case based on that patent is going to turn out better for
FOSS if there is a robust independent discovery basis. If it turns out
that lots of people have read the patent and tried to workaround it
and failed, I cannot see how that would help an attempt to overturn
it.
Also, Tridge's worst case is "the project is dead." As
opposed to "the project is dead and I am now liable to
Microsoft for US $250,000 for patent infringement damages."
If you are ignorant of the patent you are infringing on, you
will get away with a 'cease and desist.'
If you knew about the patent and knowingly infringed on it,
you are knowingly disobeying the law, and may well be liable
for damages.
-gabriel
p.s. When you apply for a patent there is also the "Duty of
Candor" that you have to consider -- this requires that you
list every related patent that you've ever seen. Since this
requires careful recordkeeping, lawyers recommend that
engineers don't search for patents._______________________________________________
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