An additional note [LWN.net]

An additional note

Posted Oct 12, 2007 18:30 UTC (Fri) by ajross (subscriber, #4563)
In reply to: An additional note by sepreece
Parent article: Patent Infringement Lawsuit Filed Against Red Hat and Novell - Just Like Ballmer Predicted (Groklaw)

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. :)

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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.