Re: Novell-MS Pact: "Doctrine of Laches", eh?

[Alexander Terekhov]

BrucePerens performing (the ending is drag's)!

http://lwn.net/Articles/208186/

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Posted Nov 8, 2006 0:55 UTC (Wed) by subscriber BrucePerens 

The form 8K is on Edgar. It gives a sentence or two about the patent
agreement. It looks to me as if this is a "license by any other name".
It's difficult to see why this would not be considered to be a violation
of the GPL terms. If FSF were to use that to enjoin Novell from
distributing the C library, Novell would be sunk.

Bruce
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Posted Nov 8, 2006 3:53 UTC (Wed) by subscriber BrucePerens 

So, go looking for a patent in Microsoft's portfolio, at uspto.gov, that
GNU LIBC might presently use but that we could do without. I'm sure you
could find one.

Thanks

Bruce
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Posted Nov 8, 2006 5:58 UTC (Wed) by subscriber BrucePerens 

Dan Ravicher did one in which he found some 283 patents that potentially
could read on Linux, two years ago. None of them had been litigated for
validity. He can't show it to you, due to the triple-damages issue - if
we know about specific infringed patents, we can be made to pay more in
a lawsuit. This is a pernicious element in the law. I have not seen it
either.

Bruce
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Posted Nov 8, 2006 6:35 UTC (Wed) by subscriber BrucePerens 

> Nobody in their right mind would ever volenteer for a patent audit ... 
> it's just as likely to make you MORE liable. etc etc.

1. Someone already did it. He did not publish the list of patents, and
thus protected the rest of us from increased liability.

2. I'm not asking you to find all potential infringements. You only need
one. And if you want to be safe, choose one to which the Doctrine of
Laches would apply.
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Posted Nov 8, 2006 6:55 UTC (Wed) by subscriber drag 

"Doctrine of Laches", eh?

So basicly your saying that in order to screw over Novell, without
screwing everybody else over, I'd have to find a patent violation that
is invalid because the patent holder (Microsoft) let it slip for so long
that a judge may end up throwing it out of court.

What is going to stop Microsoft from just saying that the violating
function in the code was non-obvious enough that it was hidden from them
so that this is news to them and they are now well within their rights
to persue licensing terms or get a cease and desist order?

I think that if I were to publicly release knowledge of a patent
violation and Microsoft acted on it immediately there would be no way to
successfully pull a laches defense.

As a defendant you would have to prove that Microsoft was negligent in
persuing a claim. The burden is on the defense to prove laches... If
Microsoft acted quickly after a claim became public how I would prove
that they were secretly sitting on this in private?

And if I could find a patent violation that at the same exact time was
easily proven to be a invalid claim then how would this help prove that
Novell was violating the GPL?

The whole thing doesn't make any sense.
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regards,
alexander.