Le vendredi 18 mai 2007 18:MM, Lars D. Noodén a écrit : > IANAL however it seems counter productive and misleading to lump patents, > copyright and trademarks together.
I agree. Patent infringement is an entirely different thing to copyright infringement. The mechanisms are different and the manner in which infringement is appreciated is also different. > > > ... How many small and medium sized enterprises will put up a fight ? > > Here in Europe? Quite a few. The small and medium businesses have the > world to lose if MS is able to change European law to suit the needs of > their movement. We got lucky last time, though not without a prolonged > and concerted effort. Unfortunately not so. In my experience, most small firms simply can't afford to engage in multijurisdictional litigation, because in Europe, that is precisely what we have. Approximate Costs to alleged infringer up to first instance decision in high tech fields : FR : 100.000 Euros, spread over 2 to 4 years UK : 200.000 Euros, spread over 1 to 2 years DE : variable, since the costs are actually dependent on the value of the declared litigation fixed by the court, but often at least between 500.000 Euros, possibly even more, spread over 1 to 2 years The costs for UK and FR are those merely associated with defending oneself, they do not include the damages that might be awarded by the court in addition. If you add to that a patent litigation in the US, you can basically kiss your treasury goodbye unless you have taken out some form of insurance (Lloyds Insurers run an insurance scheme that is alleged to cover the infringer no matter what - I have no idea what the premiums are though) > Since software patents are a US problem and not a European problem, Past case law in some countries in Europe says otherwise. > how > about a RICO suit? MS has not named the patents and FUD on this level can > probably be demonstrated to fall into extortion or one of the other > business methods forbidden by RICO. Extortion implies a certain number of things, one of the basics being a tortious act with intent to obtain financial or material gain. It would be difficult to prove at this stage that that is what MS has done. It is also very jurisdiction dependent. > I think we have actually reached that point already. Otherwise, MS would > not have started to demostrate to the world the stupidity of software > patents. Microsoft is far from being the first in line here. Others have gone before it and tested the waters ;-) > Anyway, back to the topic. MS is trying to choose the battle ground. If > it becomes a bidding war, I mean a software patent trial, they're a > movement that can mobilize enough financial resources to go on probably > indefinitely. Agreed, at least as long as they deem it necessary. They've had far worse legal battles to fight and have always managed to survive so far (US DoJ, EU Commission). > However, the noise could be a distraction from any number of problems like > failed security, loss of market share, technically superior competitions, > and so on. Focusing on those things would provide more bang for the buck > for our part. Alternately, if court is necessary, make it a RICO suit. > We're seeing apparent fraud and extortion, let's treat it as such. Well, you need sound evidence for that, and it is inevitably messy, as is any litigation of that type. One could always consider a patent misuse claim in the US if patent suits were initiated by MS, but the bar for obtaining that in court is set pretty high at the moment. Alex --------------------------------------------------------------------- To unsubscribe, e-mail: [EMAIL PROTECTED] For additional commands, e-mail: [EMAIL PROTECTED]
