Hello Alex,
first, welcome to this list and to the Marketing Project!
Alex Thurgood a écrit :
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.
What you wrote is precious to us, Alex. But let me just hint a couple of
things:
- MS has been talking about this intermittently. If they had patents,
they could just show them. But the fact is that they didn't, even though
I'm sure that they have some twisted ones in store. But they just won't
disclose them.
- OOo's IP (or whatever that means) is hold jointly by its contributors
and Sun. This could be more serious than that. But wait, there is more.
OOo is covered by the Open Invention Network. It's an IP trust founded
by Sun, IBM, Red Hat, Novell, Philipps, Oracle and other behemoths of
that kind. This organization protects directly a pool of IP and OOo is
in there. If there were to be a trial, it would be a MAD for MS
(Mutually Assured Destruction), because they would open the Pandora's
box, and I don'think they can do this like that. Otherwise, it's going
to be bloody but not so much for us actually. It will be bloody for MS
at first, because the OIN members will fall on Redmond just like a
Spring tornado over a Texas church. And I don't mean that they will do
this because they love us, as we're a piece in the whole equation. They
will do it because that will be their cause for "declaring war" to MS.
And they will counterattack with things such as IP on directories, XML,
networking technologies, etc, etc, etc.
Just my two cents of Euro,
Charles.
Alex
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