Subject: Re: References to Redphone's "patent"

From: [email-masked] (Noel Chiappa)
Date: Fri, 13 Feb 2009 17:23:55 -0500 (EST)

> From: Thomas Narten <[email-masked]>

    > IPR consultation is all about risk analysis. And risk to the IETF vs.
    > risk to me personally vs. risk to my employer vs. risk to somebody
    > else's employer, etc. All are VERY different things.
    > ... It will still come down to someone else trying to tell *me* (or
    > you) that I (or you) shouldn't worry about something ...

I am aware of all that (just as I am aware that until the judge/jury have
their say, advice from an attorney is just that, advice). What that says to
me is that anything from an IPR consulting board would have to carry
appropriate warning boilerplate about these sorts of issues.

Still, I think a lot of people in the IETF would find the professional
opinions of a competent expert _useful data_. Bearing in mind the
complexities of patent legalese, etc, etc, even having someone say 'this is
what IMO the claims mean, in English' would probaly be useful to a lot of
people. (Lord knows I find claims incomprehensible sometimes without a lot of
study - and I've been an expert witness in several patent suits!) Even having
their interpretation in front of you would probably be a substantial help
if/when you try and read the patent/filing yourself.

And there are all sorts of other useful data a patent attorney could offer.
To take but one example, Thierry Moreau's revelations today that for the
RedPhone application, a PCT/WIPO examination report denies novelty to all
claims but three is most interesting - but I would have no idea how to find
such things, if in fact I even knew they existed, and could be looked for.
(Which I didn't - and I have done an international patent, albeit some years
ago now!)

Also, most people involved in a business think it prudent to consult with an
attorney to gain detailed advice on legal issues that pertain to their
business dealings - why does the IETF think it has no need of similar expert
advice? Yes, any such advice has limits, but is no advice really better than
advice with limits? (And in passing, anyone who has consulted extensively with
attorneys in business matters eventually understands that all the attorney can
really do is offer advice - in the end, someone else has to make the decision,
because turning over decision-making to the attorneys is usually not
fruitful.)

To put it another way, experts have expertise in various fields, and it's
unwise to ignore expertise. You and I would think a lawyer who tried to
design a network, without asking advice from a network engineer, to be acting
unwisely, and to try and deal with _legal_ issues, without advice from a
_legal expert_, is to me equally unwise.

    > This is fundamentally an individual decision that every implementor
    > needs to make on their own.

Implentors will of course need to make their own individual decisions - but
again, anyone so making such decisions would be well-advised to either i)
consult an attorney, or ii) be associated with an organization that did it
for them.

Since a lot of people, especially lone implementors, aren't in a position to
do i), even an imperfect form of ii) (i.e. reading legal analysis provided by
expert contributors in the IETF, at the time the standard was drafted) is IMO
better than being thrown into the deep end without knowing how to swim in
legalese.

	Noel