On 7/12/05, Dan Ravicher <[EMAIL PROTECTED]> wrote: > > Mr. Ravicher's public statements on legal matters appear to be largely > > conformable to the law as I understand it (IANAL), with the exception > > of his repetition of the canard that it is the knowledge of the > > particular patent number infringed by a product that puts you at risk > > of triple damages. In reality, willful ignorance is no more and no > > less willful than looking up the patent numbers on the packaging and > > assessing the scope of patent claims yourself. > > You are completely wrong on this point. Willful infringement under > patent law requires the infringer to have had actual knowledge of a > patent. Without actual knowledge, one cannot be found to have infringed > a patent willfully. If you point me to authority you believe suggests > otherwise I would be happy to address it.
As I said, no more and no less. A finding of willful infringement usually reflects continued use and/or sale of infringing products, after receiving notice from the patent holder, without a reasonable basis for belief that the patent is invalid or inapplicable. "Actual knowledge" doesn't strictly require notice from the patent holder, but as far as I know courts don't take seriously random press releases saying "all 'one-click' e-commerce transactions (use of the Linux support for FAT32, etc.) requires a patent license", with or without the patent number. Actual knowledge is a finding of fact governed by a well understood corpus of law that doesn't smile on sticking your fingers in your ears and shouting "la la la I can't hear you la la la". This is not to say that there are no subtleties, or that the corpus of law has been changeless. Depending on the circumstances, there have been times when consulting competent counsel, at a point when it could reasonably be inferred that you knew you had a problem, was a bit of a Catch-22, since a refusal to provide the resulting opinion during discovery could be held against you; but that's not the case under current law. (And in any case, a failure to consult competent counsel at the appropriate juncture was, and is, almost equally prejudicial.) For the latest word (AFAIK, IANAL, TINLA) on the subject from the Federal Circuit en banc, I recommend Knorr-Bremse v. Dana, http://caselaw.lp.findlaw.com/data2/circs/Fed/011357v2.html . This ruling reversed the district court's finding of willful infringement on very precise grounds: <quote> The district court also considered Haldex's invocation of the attorney-client privilege in order to withhold its opinions of counsel, and Dana's failure to obtain an independent legal opinion despite the warning and notice of infringement. The appellants argue that but for the adverse inference of unfavorable opinions drawn from these actions, the finding of willfulness of infringement is not supported. Knorr-Bremse responds that willful infringement is well supported by the remaining findings. Because elimination of the adverse inference as drawn by the district court is a material change in the totality of the circumstances, a fresh weighing of the evidence is required to determine whether the defendants committed willful infringement. This determination is the primary responsibility and authority of the district court. We therefore vacate the finding of willful infringement and remand for redetermination of the issue. </quote> So the district court was advised, contrary to prior precedent, not to penetrate attorney-client privilege and infer that Haldex would have presented pre-trial opinion of counsel if it were favorable to their case. But in all other respects the Read v. Portec standard for willful infringement was retained: <quote> We took this case en banc to review this precedent [i. e., the progression from Underwater Devices to Kloster Speedsteel to Fromson in the previous paragraph -- MKE]. While judicial departure from stare decisis always requires "special justification," Arizona v. Rumsey, 467 U.S. 203, 212 (1984), the "conceptual underpinnings" of this precedent, see id., have significantly diminished in force. The adverse inference that an opinion was or would have been unfavorable, flowing from the infringer's failure to obtain or produce an exculpatory opinion of counsel, is no longer warranted. Precedent authorizing such inference is overruled. </quote> > > But note that, like > > certain other, more senior, FSF associates, he has his own clever way > > of turning FUD about IP law into revenues. Read more at > > http://www.computeractive.co.uk/vnunet/analysis/2132110/linux-patently-opportunity > > and > > http://www.forbes.com/home/enterprisetech/2004/08/02/cz_dl_0802linux.html > > . > > Yes, prior to forming SFLC with Professor Moglen, I represented some > clients for fee. I do not do so any longer. However, having said that, > I dispute that I have ever spread FUD. In fact, I have helped minimize > it. The matter you cite is one where I quantified the previously > indeterminable risk patents pose to the Linux kernel, which had been > identified long before my work by Richard Stallman, HP, RedHat and many > others. I concluded that, although the risk patents pose to the Linux > kernel is not zero, it is no larger than the risk patents pose to other > operating system kernels and might actually be much less. Must be nice not to have to "represent clients for fee" -- oh, except for the ones where you switch from investigating them to accepting their "donations". Unless, of course, you wish to disclaim knowledge of that [apparent, I have no personal knowledge, but I've already posted links to a certain amount of public evidence] practice of the FSF. And you can't have it both ways: either you did your own patent research, in which case you do no one any favors by withholding your magic list, or your role in the OSRM was little more than to create and publicly advocate a pricing policy for a vulture capitalist's speculative lark on a lawsuit hedge. Either way, it quacks like deliberate FUD. Oh, and for those reading at home -- did you follow the Forbes link for an idea of the company that Mr. Ravicher used to keep before he got a plum job with Eben Moglen playing Robin Hood? <quote> OSRM's team includes "director of legal research" Pamela Jones, a paralegal who runs a SCO-bashing Web site called Groklaw, and "lead patent counsel" Daniel Ravicher, a 29-year-old lawyer in private practice who last year started a foundation that claims half of the patents in the United States are illegitimate. Ravicher, who performed the patent analysis that turned up Linux's 283 possible patent violations, claims on his Web site that he has "extensive experience litigating, licensing, prosecuting and otherwise counseling clients with respect to patents." In fact, he has three years of experience as an associate at two law firms in New York and has never acted as lead counsel on any patent litigation. Ravicher's online bio also claims that he "practiced law" at Skadden, Arps, Slate, Meagher & Flom, one of the country's most prestigious law firms. Actually, he spent eight weeks at Skadden as a summer intern while he was still attending law school. </quote> By that standard, I could claim to have practiced not only law but secondary education, utility economics, AI research, spaceflight operations, genetic research, particle physics (experimental and theoretical), and weather simulation, in two US government agencies, three universities and a high school, a Fortune 500 corporation and a major law firm -- before I reached legal drinking age. > > I question his use of statistics regarding such disputes, > > however. > > I am happy to provide you support for the use of statistics I have made > on which you have questions or issues if you will raise them with me. Your "half of the patents in the United States are illegitimate" (Forbes), or "third party requests for reexamination, like the one filed by PUBPAT, result in having the subject patent either modified or completely revoked roughly 70% of the time" (PUBPAT press release on Lipitor case), are no better than another lawyer's "courts, in recent years, have -- in patent infringement cases -- found the patents claimed to be infringed upon invalid in approximately 80% of the cases" (Underwater Devices. cited from Knorr-Bremse). The Federal Circuit, en banc, censured again (20 years later) the client who relied on that latter statement for its "flagrant disregard of presumptively valid patents without analysis". This is the sort of misrepresentation of the significance of a number that deserves the phrase "lies, damned lies, and statistics". (Mis?attributed by Mark Twain to Benjamin Disraeli -- see http://www.york.ac.uk/depts/maths/histstat/lies.htm .) As you well know, many patent applications contain dozens of progressively more specific claims, as insurance against invalidation of an overly broad claim, either during the patent examination process (which would be intolerably arduous if it were single-threaded) or in light of an opponent's more thorough research of the prior art at some stage of a legal proceeding. Requests for reexamination almost always happen either during the run-up to a lawsuit (where the alleged infringer has serious reason to believe a claim is overbroad) or when a patent applicant is rebutting the examiner's evidence of prior patents (where the applicant has serious reason to believe that its application will go forward if the disclosure in the prior patent doesn't support all of its claims). Judging from the breadth of the claims in the one patent on which I appear as inventor (#5,438,360, if you're interested), I am astonished that the proportion of reexamination requests that succeed in invalidating at least one claim isn't closer to 99%. If all claims of that patent were to be taken seriously, whoever currently owns its economic rights could probably claim that the motion estimation subunits of all extant MPEG video encoders infringe it. (Or they could if the maintenance fee had been paid in 1999, which Google says didn't happen.) Knowing what I personally actually reduced to practice, I think that would be a rather comical stretch of the original legislative intent behind patent law. Note to Steve Langasek: it's not clear whether you intended to invoke Godwin's Law or the similarly ugly situations in Palestine and Northern Ireland with your "collaborator" comment, but I do not care to be on either side of any of those analogies. If you had bothered to check the debian-legal archives before attempting to rip me a new one, you would perhaps have found that I, too, consider the current USPTO to be wholly 0wn3d by large US corporations. That doesn't necessarily mean that I think any invention that can be expressed in software form should automatically be unpatentable; but positions between the two extremes, informed by personal experience and a close reading of the primary literature, seem to be rare enough around here that I suppose I should excuse your jumping to one conclusion or the other. > > And even though these three patents appear to have been > > chosen as low-hanging fruit, in two out of three cases it remains to > > be seen whether the patentees will submit revised claims and obtain > > reissuance of their patents. "Office actions" of the kind issued in > > the Lipitor and FAT-long-filenames patents are frequently issued in > > the course of establishing what claims the patent examiner will allow > > on the basis of a given disclosure, and narrower claims often succeed. > > True. However, a narrower patent may nonetheless eradicate any public > harm being caused by the patent by no longer capturing functionally > equivalent design arounds. Also, the FAT patent matter received a > second office action about a week or so ago that again rejected all of > its claims. Did it have an X in the little box marked "FINAL"? If not, you know as well as I do (better, I hope, since you profess to be a practicing patent attorney) that it's just the next move in a potentially very long game. During which, I might add, the risk to presumptive infringers is not particularly lowered, and may even be raised. > > If I were you I would be very, very cautious about inviting the SFLC > > to hang its first test case on my project. > > I completely agree that potential clients should do research before > retaining counsel and that both competency and other factors should > impact the decision of what counsel to retain. Without question, > clients should retain counsel that they feel comfortable with and trust. > > However, just FYI, SFLC already represents a large number of clients, so > no new client would be anywhere close to our first. Also, Professor > Moglen and I have been providing pro bono legal services to various free > software clients for many years now. The only thing that is new is that > we have received a grant to enable us to grow a firm to expand our > capacity. If people wish to contact us about how we might be able to > help them, terrific; if not, we wish them all the best. There are many uses for the attorney-client relationship; if Professor Moglen's letter on behalf of Vidomi is any indication, I would expect the SFLC to be, shall we say, creative in these matters. A large number of clients need not imply that the first serious judicial scrutiny of the SFLC's charter and tactics has yet to come. Just out of curiosity -- has either of you actually spoken in court, on behalf of a paying client, in a capacity as an attorney at law? While I have certainly read Mr. Moglen's "expert witness" affidavit in Progress v. MySQL, and the LPF's amicus brief in Lotus v. Borland, I have been unable to find any record of his (or your) litigating a case. Not that I've looked all that hard, mind you; and there are of course many respectable ways to use a law degree that don't involve speaking in court; but it's always interesting to see whether an attorney's brief has ever made an impression on a judge, especially in an appellate proceeding. In fact, my limited experience as a paying client has taught me to insist on the production of such evidence (at least at the district court or state appeals court level) if there is any prospect of actually litigating the matter. And my limited experience as a pro bono client has taught me to look gift horses in the mouth very, very closely. Cheers, - Michael (For the record, Mr. Ravicher, nothing personal. But if I were you I would choose another forum to peddle the SFLC's wares, at least until you can demonstrate that it is something other than the "institute of crack-smoking contract interpretation" cum ambitious copyright assignment shakedown scheme that it looks like from here. IANADD, IANAL, TINLA, and coming from me it's just hearsay; but speaking as one who has been deceived by an employer at an age similar to yours, I hope you have looked closely at your own gift horse to see whether it is of Greek provenance.)