[ih] patent licenses, not Why the six month draft expiration ?

[Karl Auerbach]

On 2/3/24 4:44 PM, John R. Levine wrote:
> On Sat, 3 Feb 2024, Karl Auerbach wrote:
>> I don't understand your point about attracting patent trolls.
>
> Let's say someone gives us (ISOC, whoever) a patent, and we offer $1 
> licenses.  Then someone else shows up and claims our patent is 
> invalid. Or per Brian, the way we collected the patents makes us a de 
> facto patent pool.  Or whatever.  Even if the suits have little merit, 
> as I'm sure you know defending even the crappiest patent suit costs a 
> fortune.  If we require people to indemnify us for suits related to 
> their free patents, that rather defeats the whole purpose.

In general, because of presumptive validity of claims, it is less 
expensive to defend an issued patent than to attack one.

(And, of course, there is the relatively-cheap strategy of saying "OK, I 
offer no defense except to remind you (and the court) that even in the 
absence of a defense you are required to overcome the presumption of 
validity and prove your case for invalidation." The side attacking the 
patent doesn't get a favorable judgement for nothing - they have a 
burden of proof that has to be met.)

I am hardly an expert in anti-competitive laws around the world, but 
from what I know about patent pools just waving the fear of being called 
that is not particularly scary when the licensing organization 
(hypothetically ISOC) engages in fair; open licensing with reasonably 
inexpensive, non-exclusive, and non-restrictive terms.  Such activities 
can hardly be credibly characterized as anti-competitive or manipulative 
of the marketplace.  Indeed, I think that our experiences with ARIN, 
RIPE and the other address registries, and also with ICANN, inform us 
that institutions that manage Internet related assets can operate in the 
public interest and with tolerable levels of legal risk.  (Yes, you 
heard me say it: ICANN can and and does operate in the public interest. ;-)

>
> If someone wants to provide a free license to a patent relevant to an 
> IETF standard, I believe it is adequate to put the license grant in 
> the IPR declaration.

Remember, a license grant in an IPR declaration is really nothing more 
than a bald (and potentially revocable) offer to create a license 
contract. (The GPL people have tried to create a belief that a license 
and a contract are different things - but they are not.)  A grant in a 
IETF document opens the door to lots of dispute about whether an 
enforceable agreement (a contract, a license) has been formed - there 
are all the formative issues of mutuality, revocation, acceptance, 
consideration, reliance, etc.

A transfer of a patent (or copyright or trademark) to a tax-qualified, 
long-lived entity (such as ISOC) allows considerably more flexibility as 
well as rather more solid grounds to have trust that the legal status of 
things actually is what it is believed to be.  And it largely eliminates 
the risks of uncertainty that can arise with licenses to rights that are 
held by mortal people who will eventually die and their assets 
(including license grant agreements) disseminated.

> For copyrights, in the US you can abandon copyright basically by 
> saying so.

Not everyone has a libertarian view of the world; some people, perhaps 
most people, like to retain some control over their expressions.  I know 
that, speaking for myself, that I'd appreciate if the copyright rights 
to these discussions of Internet history on this list were not cast into 
the public domain (where they could be freely and even maliciously 
manipulated), but, rather, were held by an organization by something 
like ISOC or the Computer History Museum where the integrity of the 
discussions are likely to be maintained.  (I can't remember what terms 
were imposed on this list, but absent appropriate words, we each own the 
copyright to our individual postings.)

     --karl--