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

[Karl Auerbach]

Filing a one page response that says "I offer no argument or evidence in 
defense but point out that the opposition has the burden to overcome the 
presumption of validity (citing 35 U.S. Code § 282)" is rather quick, 
easy, and inexpensive.

https://www.law.cornell.edu/uscode/text/35/282:

"A patent shall be presumed valid. Each claim of a patent (whether in 
independent, dependent, or multiple dependent form) shall be presumed 
valid independently of the validity of other claims; dependent or 
multiple dependent claims shall be presumed valid even though dependent 
upon an invalid claim. The burden of establishing invalidity of a patent 
or any claim thereof shall rest on the party asserting such invalidity."

It always nice at trial or in an administrative proceeding to have a 
presumption in your favor and a the burden of proof and burden of going 
forward on the opposing party. ;-)

     --karl--

On 2/3/24 6:37 PM, Bob Purvy wrote:
> Karl, I don't disagree with most of this. However:
>
> /> 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.)/
>
> That's wrong. If you hold a patent and someone files an IPR on it, 
> your legal fees to rebut their assertions will be about equal to theirs.
>
> You may be more likely to win, for the reasons you stated, but that 
> doesn't make it cheaper.
>
>
>
> On Sat, Feb 3, 2024 at 6:25 PM Karl Auerbach via Internet-history 
> <internet-history at elists.isoc.org> wrote:
>
>     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--
>
>
>
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