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Require revelation!

Require revelation!

Posted May 25, 2013 2:14 UTC (Sat) by giraffedata (subscriber, #1954)
In reply to: Require revelation! by Max.Hyre
Parent article: Google releases a draft VP8 patent cross-license

Well, that would certainly be a departure from our present legal system (in general, not just patents). As it stands, a person usually has 1-4 years to assert a claim after the claim has ripened, and what you're describing means a patent holder would have to assert his claim immediately after learning that someone was considering violating his rights.

But since the best the patent holder can give you is a very biased opinion of what patents cover VP8, I think you should really dream about an efficient court system where one can get a declaration in advance of whether a patent actually does cover what you're considering doing. Or for that matter, anything at all.


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Require revelation!

Posted May 25, 2013 5:51 UTC (Sat) by dlang (subscriber, #313) [Link]

actually, right now with patents, the patent owner can wait as long as they want, limited only by the patent expiring) before asserting a claim.

What is being proposed is that there be the ability for someone to kill FUD proactively.

Right now, you can go to court and tell the Judge "this company is hurting my business by publicly threatening to sue me, I don't believe they have a case and I want you to publicly say so", and if the Cour agrees that this is the case (including that you really have reason to feel threatened), they can force the company to show the Judge their side of the case. This isn't a full trial, and I believe that the Judge interprets any ambiguity in favor of the other company, but it's possible (but not easy) to get a ruling to shut them up.

What Max is suggesting is to extend this a bit in the patent space.

This isn't forcing them to fully assert their claims at any time, but it's giving them a chance to head off infringement (which they should want to do), or be in a position to get treble damages later, but what they would need to do is to identify which patents they have that they think someone else's product infringes on, when that person asks them to.

They know their own patents (at least in theory), so this should not require a lot of effort on their part, 'merely' reading the description provided to them and returning the relevant patents.

At this point, the company with the new product has the option of fighting or licensing the patents identified.

Yes, it will be a biased list, but it's better to get a biased list that you can fight than to have no place to get started.

And if they just give you a list of every patent they own, you should be able to go to court and say "we sampled these 50 patents that they said we infringe, out of the 2000 patents they say we are infringing, here is why we don't infringe on these 50, we want a judgement that based on this sample, we don't infringe on any of them"

Trolls (including patent pools) won't like it because it forces them to be specific, for them vagueness is their strength (we won't tell you what you are doing wrong, but pay us for the privilege of doing it. If we tell you what you're doing wrong you could stop doing it instead of paying us)

People who have real patents will be able to do a better job, ones with standard essential patents should be able to trivially identify them by just referring to the standard that's implemented.

I read recently that half the patents in the MPEG-LA pool have expired, but you still are buying a license to them when you get a pool license.

Require revelation!

Posted May 25, 2013 11:29 UTC (Sat) by Max.Hyre (guest, #1054) [Link]

Thank you, sir. Precisely what I had in mind, just much more coherent. :-)

Require revelation!

Posted May 25, 2013 23:18 UTC (Sat) by giraffedata (subscriber, #1954) [Link]

actually, right now with patents, the patent owner can wait as long as they want, limited only by the patent expiring) before asserting a claim.

I'm not a patent lawyer, but this seemed inconsistent enough with most law that I did a quick web search and the statute of limitations for patent infringement seems to be 6 years in the US. Definitely on the long side, but still limited. And whether the patent has expired when the claim is asserted seems to be irrelevant.

I tried to think of existing places in law where someone has to weakly assert a claim as soon as the rights violation is proposed, but couldn't come up with anything. I'm sure they exist somewhere, but I'd say they're fairly exceptional. The concept just seems to be contrary to our adversarial legal system.

Require revelation!

Posted May 26, 2013 3:14 UTC (Sun) by dlang (subscriber, #313) [Link]

In theory their may be a statute of limitations, but in practice it doesn't matter.

Even if you designed your product/software 18 years ago, they can still sue you over the patent if it's still in use. The damage they can recover may be limited to the last 6 years, but if they can shut you down unless you pay them whatever they ask for, does it really matter?

As an example, look at the fuss over the .gif patent, they waited until just before it was due to expire to start suing people

You can view this as requiring them to assert a claim, or you can view it as a streamlined way of getting a declaration of non-infringement.

The normal standard is that the courts assume that everyone is acting in good faith, and that is how horid abuses of the system like Prenda Law have been getting away with it.

I think there's enough of a track record now showing abuse of this presumption to make it a serious question of if it should continue.

Requiring patent holders to say more than "out of the millions of patents we own, we think you infringe something, pay us what we demand" and instead specify exactly which patents when asked, on the pain of not being able to assert any other patents sounds like a very modest change.

From a legal standpoint, this can't possibly be an unreasonable burden on the patent owners (especially if they par paid a reasonable amount for the question).

The patent owners know their patents, they are only being asked to search them against what's being described in the request. If the request doesn't document something, the declaration of non-infringement doesn't apply to the undocumented things.

And currently it's not considered an unreasonable thing to require companies to search all the patents from all companies to see if they infringe on _any_ of them. The search of patents you own and are familiar with is trivial by comparison.

I also don't expect this to be used a whole lot. It will cost money to contact companies and get them to do this, but there are cases where it really should be done.

There are a relative handful of companies that are likely to assert patents offensively, and while this list changes over time, getting them to specify what patents they think are infringed is important.

As an example

Microsoft claims that Linux and Android infringe on it's Patents, but nobody outside of Microsoft has any clue which ones (When they went after B&N, B&N made public a few of them, and they were weak enough that when the case settled, B&N didn't pay Microsoft a dime).

The fact that Microsoft makes more money from Android than from their own Phone shows just how broken the system is.

If nothing else, refusing to identify the specific patents when asked means that it's impossible to change the design to not infringe on them, and this should negate any chance for an Injunction barring the product, and severely limit any damages

Require revelation!

Posted May 26, 2013 17:26 UTC (Sun) by giraffedata (subscriber, #1954) [Link]

Even if you designed your product/software 18 years ago, they can still sue you over the patent if it's still in use. The damage they can recover may be limited to the last 6 years, but if they can shut you down unless you pay them whatever they ask for, does it really matter?

Of course it matters. What's worse than having to pay a huge license fee to stay in business? Having to pay a huge license fee to stay in business and having to pay royalties for 18 years of past infringement, especially if for the first 12 of those, you weren't even infringing, but because it's so long ago, you no longer have the evidence.

The fact that it matters is the essence of Max's proposal, which amounts somewhat to reducing the statute of limitations period to less than zero. The point is to avoid all past royalties, even though it does nothing about the problem of having to pay a huge license fee to go into business.

Require revelation!

Posted May 26, 2013 23:20 UTC (Sun) by dlang (subscriber, #313) [Link]

> What's worse than having to pay a huge license fee to stay in business? Having to pay a huge license fee to stay in business and having to pay royalties for 18 years of past infringement, especially if for the first 12 of those, you weren't even infringing, but because it's so long ago, you no longer have the evidence.

and what's even worse is being forced to pay license fees on patents that you aren't infringing now and never have been.

And it's this last case that is the situation today.

Require revelation!

Posted May 26, 2013 17:50 UTC (Sun) by giraffedata (subscriber, #1954) [Link]

By the way, the value of this advance claim requirement probably isn't unique to patents. Here's the real estate equivalent:

Omar: I probably own the land downtown you're using, because I own most of downtown. I'll lease it to you for $1000/month.

Tom: I don't think you do; I bought it from Sue, and as far as I know, it was hers to sell. Give me the record number of your deed.

Omar: I have a thousand deeds and don't have time to look it up (and I would hate to make a mistake and cheat myself out of the rent).

Tom: Well then I'm not paying you anything.

[two years later]

Omar: I found the deed - it's 1995123456 and you owe me $24,000 for the past two years. And you're evicted.

This is legal. The only way Tom could have eliminated the uncertainty was to sue Omar for quiet title at the beginning. It might be nice if instead Omar had the responsibility of producing the deed upon request.

Require revelation!

Posted May 26, 2013 23:18 UTC (Sun) by dlang (subscriber, #313) [Link]

two things

In Real Estate, when you purchase a piece of property, a standard part of the purchase is to do a title search, which is supposed to definitively prove that the seller has the right to sell you the property.

It's not possible to do that with patents

What's being proposed is the equivalent of the title search against a particular companies patents.

Require revelation!

Posted May 27, 2013 2:16 UTC (Mon) by giraffedata (subscriber, #1954) [Link]

I guess you don't think a patent search is anything like a title search. And you also overrate title searches. They don't definitively prove anything, which is why title insurance and quiet title lawsuits (and other title-based lawsuits) exist.

(I should point out for those outside the US trying to follow this analogy: in most of the US, unlike many other countries, the government doesn't keep track of who owns what land; it's a matter for litigation based on document trails; it's easy for disputes to exist).

What's being proposed is the equivalent of the title search against a particular companies patents.

That's the opposite of what was proposed in this thread. Max proposed you ask the patent holder directly which patent gives him rights over your product and he has to tell you. That's like asking Omar for the deed record number in my analogy. A title search is where Tom searches through a pile of public records, reading and interpreting them, and Omar doesn't lift a finger. Much like today's patent search.

Require revelation!

Posted May 25, 2013 23:24 UTC (Sat) by giraffedata (subscriber, #1954) [Link]

I read recently that half the patents in the MPEG-LA pool have expired, but you still are buying a license to them when you get a pool license.

I don't even know what that means. How do you buy (or have) a license to an expired patent? Maybe this just means expired patents are included in the list of patents licensed, but that's not even interesting enough to mention. The licensor and licensee must know they're expired, so they don't affect the price or anything else.

Require revelation!

Posted May 25, 2013 23:55 UTC (Sat) by hummassa (subscriber, #307) [Link]

It is, at very least, false advertising...

Require revelation!

Posted May 26, 2013 2:46 UTC (Sun) by dlang (subscriber, #313) [Link]

you buy a license to the MPEG-LA pool, it includes a whole bunch of patents, and the money for the patents is split between the owners of the patents.

approximately half of the patents in the pool have expired since it was formed, but the cost to license the pool has not changed, and the list of patents in the pool has not changed

since we don't know how the money is split between the companies in the pool, it's impossible for us to say if these are being counted for that purpose or not.

The article I read was focusing on the fact that the cost of the pool should have dropped as licenses expired, but has not changed


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