Hi all, Now that I've been told to subscribe to the dev marketing list, I discover that the discussion has gone underground :-( - so much for participative culture.
For all of you not in the know, I have been active in the OOo community since it was first launched, am present on several projects, and have, well, I suppose some would say, rather controversial opinions ;-) Apart from that I am an intellectual property attorney, and more specifically, a patent attorney. I trained as a chemical engineer, then did my law studies. I know what a computer program is ;-) and about software development despite what others have recently assumed about me. I am also personally against legislative measures that would make software patents legal in Europe, despite having drafted patents that included software elements for certain of my clients. My conscience does not stop me from earning a living, nor counselling my clients professionally whilst including my personal opinions on this thorny subject. To the present topic, I might add, that although many of you probably consider MS's moves FUD, and well they might be, they need to be given due consideration by the OOo community and not just brushed away under the carpet. Our marketing slogan "GET LEGAL, GET OPENOFFICE.ORG" seems to be waving the red flag at the bull, especially if, and just give this one second of thought, any of the code in OOo potentially has an impact in respect to MS's US patents, since one would assume that it is those that MS is asserting in its public statements. To think that nothing will ever come of it is to be naïve in the extreme. Patent litigation for MS in the US is a doddle to initiate. Who then would be the target ? The OOo community ? The vendors and training businesses that have set up around the community ? The Linux outfits ? All these questions and more ? What of the agreement between Sun and Microsoft ? or Microsoft and Novell ? None of these agreements specifically cover the OOo community or the satellite businesses that have flourished around it. Obviously, as long as MS doesn't indicate which particular patents might be infringed, there is no what we lawyers call "notice" under US patent law, so officially, the Community doesn't yet know ;-). Strategically, what usually happens in such cases : well, usually, the patentee writes a charming letter to the alleged infringer, putting them on notice of the infringement, and requesting the alleged infringer to cease and desist and to reply that appropriate measures have been taken to ensure that no further infringement will take place. That in itself is often enough to put the frighteners on small businesses who neither have the resources nor the energy to engage in a long drawn out fight with a large corporation. If the alleged infringer and recipient of the notice letter does not reply or comply with the request, then the patentee can initiate suit. If the patentee chooses his jurisdiction carefully, you can get what we call a "rocket docket" and try and obtain a very swift decision in your favour. Several states in the US offer this kind of accelerated first instance prosecution before the District Court. So what happens then ? Does the small guy just fold up and die ? Unfortunately, often yes, that is precisely what happens. The judge can order the defendant to cease and desist, and additionnally, the infringer may be liable to paying triple damages for wilful infringement (although things are afoot to change the law in respect of wilful infringement, but it will still exist). It may be unfair in an absolute sense, but it does happen. Of course, the small guy can appeal, etc, etc. So what about cost ? Average costs for first instance defence of infringement are estimated between about 2 Million Dollars to 7 Million Dollars, those are just the costs of the court proceedings and attorney fees, and do not include any damages that may be awarded (which can be tripled remember, if a finding of wilful infringement is decided by the jury). How many small business can afford that ? Not many, believe me. To those who would say to me :"That's downright scandalous, how can anyone afford to defend themselves in such a situation ?" I would reply, "I agree, but steps could've been taken to mitigate such an event" Those steps include searching for the patents that might be asserted, and then searching for prior art to try and weaken the patentee's position - used as a lever in negotiation. Also, having invalidity studies of the patents prepared by patent counsel. After all, if the patent is manifestly invalid, the patentee won't be too keen on filing suit if he knows about it in advance. The costs of such searches are relatively high, and still fraught with some uncertainty, but it is nothing compared to the cost of a full blown infringement litigation. Anyway, just some food for thought - have a nice evening. Alex --------------------------------------------------------------------- To unsubscribe, e-mail: [EMAIL PROTECTED] For additional commands, e-mail: [EMAIL PROTECTED]
