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Participants: Rob, stefan, mike, anne, jean-marc, monty, chaals, tim.
Summary:
- Be proactive - look for problems
- Publish why you think you are unencumbered & Approach people who you think have a patent and discuss with them
- Build up a body of supporters & allies, who will help you publish it
- Patent trolls cannot any more make a preliminary injunction.
If somebody puts the pressure on you with FUD, you push the pressure back to them and require clarification from them.
Publish and document everything. Put it on record! (like a patent pool but nicer)
Pick your battles.
Detailed Transcript:
Monty: Apple is opaque. Nokia and MS have a concern that they can be attacked. The most litigious members of the industry are in MPEG. Qualcomm is precedent that patent pools are not places you can play funny buggers holding something outside. MPEG members have been worried about other members, and signing on to H264 keeps them safe from the people they fear - implementing Ogg doesn't give them that protection.
Tim: The Lucent case shows there is no better protection against trolls.
CMN: Lucent is a counter-case - there is more precedent (Rambus) in favour of the patent pool.
Rob: Joining MPEG or signing contract means you agree to RAND your patents. People feel the contract is stronger. MPEG accepts RAND as anything that is the price which MPEG *would* take - so you don't have to put your patents in the pool. Agree that there is a concern that there is a contract for a large group of patent holders.
Monty: Believe that is a major consideration for MS, Nokia it is important, with Apple it is hard to say.
Rob: Khronos has a mutual obligation. ODF license based on agreeing not to sue over it.
Monty: Has been suggested that Xiph attempt to set up a patent pool around Ogg agreeing to patent protection. But how do we sign people up?
Rob: EULAs?, certification, or some kind of behaviour.
Monty: Brett McDowell? suggested it, and is interested in doing this - but we have not had the people to figure out how to do it.
Rob: There was a mutual non-assert in MP4? systems that we put in. Changed - but there *was* a rider that said the patents were mutual non-assert as a condition for RF. Apple pulled at the last minute
Monty: There was a bunch of to-fro over Vorbis just before they released iTunes. Don't think MS is in active opposition to Ogg. Nor do I think that Nokia is opposed to it, think their fears are legitimate.
CMN: Why?
Monty: Seems like they are too disorganised to have a serious position.
Rob: Didn't seem to be a position they would die for... Nokia got railroaded by MPEG, and think they are bitter about that, and think there is a way to go back and salvage H.264 ...
Tim: Majority of H.264 patents will expire in next few years
Rob: B-frames are the only difficulty in H.264. ... There are differences over length of patents
Tim: It is possible to amend claims after filing. So you can amend application claims to cover things we have published and state that those were covered by the original application.
Rob: Value is to remove people, one by one, from list of people who may sue, to the point that any risk is reduced to the point of being worth running.
Monty: MS points out they are the big target.
CMN: Right. And the can afford to settle at a price that makes "RAND" effectively discriminatory against anyone else, thus giving MS an edge.
J-M: The concern is about protecting themselves against other companies in the MPEG pool rather than trolls?
Monty: Both. There are plenty of MPEG members who would be happy to play either game... Patent FUD has been a problem since the beginning. MP3? association with Vorbis led to claim that there were patent encumbrances over Vorbis. Effects continued, even after the statement was retracted. So what do we do... ?
Rob: Publish information showing your IPR foundation. Proactively describe what you have done, and why it is unecumbered. E.g. when we did dream we had all the same arguments and FUD. We cleared it up by publishing the information we had on its heritage, the IPR landscape as we knew it.
Monty: Expect this to be an iterative process.
Rob: Forces the FUD-merchants to cough up information too, if they are trying to rebut the argument.
J-M: imagine a company has a patent you think is invalid. How do you argue that there is no patent in general.
Rob: Patent trolls try to keep you worrying about that question. It isn't really the problem - it is more likely that a professional patent search will have turned up the stuff that is there. Now there is no automatic injunction, just cash, there is a quantifiable and manageable risk.
CMN: You publish all the prior art stuff you can find and use it to threaten any kind of patents that may have been provided above. Use that for PR.
Rob: Offer mutual non-assert to put pressure on patent-holders (or likely patent-holders) to join in a pool. Used to be that standards groups could not discuss prices, and ergo patents. That is being blown open, by anti-trust authorities being clear. And some groups have started to change their policy to allow patent rules stuff happen before the standard is finished. This allows you to start chasing the patent trolls and for patent information to be feedback into the patent process. And you can do this in public.
J-M: For being proactive, you claim you don't infringe anything. How do you select which ones you should state you are not infringing.
Monty: Defend yourself from challenges.
CMN: Find a strategy where you can get people to shed light. That is what would have happened with W3C?, but for the withdrawal.
Mikko: That wouldn't have solved the problem
CMN: Would have brought a number of important players to help shine the light, rather than keeping everything in the dark and avoiding helping.
Monty: Trolls are still important risk in perception...
Rob: Most people who care realise that real trolls are no longer a huge issue, but there are people who are happy to keep holding out the risk.
J-M: Does that bring out this stuff?
- No, but it provides PR motivation.
Rob: It is also possible to do actual patent research. It happens all the time. The problem is often that people think the entire issue is too hard, so they avoid beginning. If you do some research, you are building support for opening it up.
Monty: Just because the problem is infinite doesn't mean we can't find a useful solution.
Rob: Calling for patents, looking for information, publishing what you have, means that you start to make it harder for a patent troll to actually succeed.
CMN: We would like to see this happen, to make it clearer for us as well as others. And it is important to make this happen for more and more organisations, in order to allow for success of the technology.
Rob: In theory it owuld be possible inside MPEG to get an RF codec developed, but they keep getting voted down in practice. AVS(?) is a chinese effort to actually achieve that.
Monty: There haven't been a lot of claims that we are stealing technology, or that this is somehow underhand.
Rob: Right. You have to work to beat that story, but that means you can beat the story. ... it also helps that Flash and On2 have never been sued.
Topic: Latches Rob: According to US case law, if you willingly don't pursue your patent, it will not be enforceable (similar to trademark). The case law sets an apparent outer limit of 7 years, but the case law suggests that this can happen even earlier if you are basically doing this in bad faith.
J-M: A patent claim will be very much "you are infringing everything" ...
CMN: If you draw out the patent, then you start actually examining the reality. After a while, yu actually clarify.
Monty: Lawyers avoid going to court unless they are sure they will win. So a decent set of lawyers will clarify this for you, and you won't go to court.
Rob: A lot of companies already know what the patent landscape is. The trick is to get them to lay out what they know.
Monty: If we *are* infringing a patent, we really do want to know, and deal with the issue.
J-M: What if you come a cross a patent that nobody has threatened on?
Monty: You are still infringing. You still have to deal with it. First thing to do after checking it out, is to contact the patent holder and see if you can come to some arrangement.
Tim: Or attack the patent itself...
CMN: There are a lot of patent holders who will happily put patents on the table - they hold them defensively, but are remarkably willing to actually help reduce the patent FUD.
Rob: Chip company example. They are happy to kill the royalties that they are not getting anyway, but that are driving their costs up.
Rob: You have to proactively establish your credentials, and attack the argument - draw them into actually helping you clarify the situation.
