An additional note [LWN.net]

An additional note

Posted Oct 12, 2007 18:23 UTC (Fri) by sepreece (subscriber, #19270)
In reply to: An additional note by ajross
Parent article: Patent Infringement Lawsuit Filed Against Red Hat and Novell - Just Like Ballmer Predicted (Groklaw)

"In neither case does IP Innovation get paid."

Well, even if Novell and Red Hat stop distributing infringing systems [assuming that they are], the plaintiff would still be able to claim damages from all sales to date, probably trebled as willful infringement because the Apple suit got enough attention that they should have been aware of it.

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An additional note

Posted Oct 12, 2007 18:30 UTC (Fri) by ajross (subscriber, #4563) [Link]

I'm not a lawyer, but I'm all but certain that's not how "willful" is defined. The test isn't whether or not the party knew about the patent, but whether they reasonably believed it to be valid. All Red Hat and Novell have to show is that the decision makers (who, remember, are free software developers -- RH/Novell just packaged what they got from Gnome) thought this was invalid after the Apple suit. Scan through the comments above and on Groklaw for a sampling of what the free software community thinks about this patent. :)

An additional note

Posted Oct 12, 2007 20:47 UTC (Fri) by sepreece (subscriber, #19270) [Link]

My understanding is that the the patent court begins with the assumption that patents are valid (hence the RIM situation, where getting the patents invalidated didn't help them avoid an injunction). With that bias, I would expect the court to similarly accept that knowledge of a patent was sufficient to establish willfulness. But IANAL.

Most of these patents do seem bogus. This one, if it really reaches back as far as 1984, may be harder to invalidate. Windows were relatively new, then. The inventors (as opposed to the company that owns and is prosecuting the patent) do seem to have been in roughly the right place and time, but I have no detailed knowledge on this.

An additional note

Posted Oct 13, 2007 3:16 UTC (Sat) by felixfix (subscriber, #242) [Link]

Yes, but willful I think has a specific legal meaning that you knew about the patent and thumbed your nose at it anyway. IANAL of course, but I suspect there is something to that. Now will they get any damages if they claim willful and can't prove that? There's a question.

An additional note

Posted Oct 12, 2007 20:32 UTC (Fri) by fritsd (subscriber, #43411) [Link]

Yes, but I think the point is if they had sued Microsoft instead of Novell and Red Hat, they could have got a settlement worth millions, and Microsoft would be more likely to settle instead of "battle to the death" as pp puts it.
So why then do they sue those two companies which for them carries the same risk (losing the patent they use as a weapon) but much lower possible profit, compared to sueing Microsoft.

I haven't read the actual patent, is it likely that Microsoft just doesn't infringe it?

An additional note

Posted Oct 12, 2007 20:55 UTC (Fri) by sepreece (subscriber, #19270) [Link]

I also haven't read the patent in any detail. I think there are technical differences between the implementations and capabilities of the windowing technology in Windows versus those in X11 that *could* affect whether this patent applied, but I don't know enough about the patent to begin to guess whether that's the case.

I do agree that it seems odd to pick on the defendants they chose.