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

[Bob Purvy]

the other side *will* present a detailed brief about how your patent is
invalid. See what your lawyer thinks about not rebutting it. I'll bow to
their superior expertise.

On Sat, Feb 3, 2024 at 6:48 PM Karl Auerbach <karl at iwl.com> wrote:

> 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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>>
>