Subject: IPR statement... Intentionally creating derivatives which infringe on protected IP creates numerous claims and grounds for pain we don't need here.

From: todd glassey <[email-masked]>
Date: Mon, 30 Jan 2012 12:25:35 -0800

The IETF has long hidden its (c) and patent violations IMHO under the
guise of its broken standards process and its time to pay for that. Here
is the case law that says NO NO NO...

This is copied from a specific IP website as an informational post. It
is specific to the willingness to infringe on patents and the legal
issues since this clearly is a joint-development consortia and not a
standards org.

In fact let me ask, when was the last time a standard itself was issued?
You see my point???

So here is the language -

1)	Willfulness is a question of fact and involves a determination as to
an infringer’s state of mind. Pall Corp. v. Micron Separations, Inc., 66
F.3d 1211, 1221 (Fed.Cir.1995) (willfulness is a question of fact that
involves elements of intent, reasonableness, and belief); Graco, Inc. v.
Binks Mfg. Co., 60 F.3d 785, 792 (Fed.Cir.1995) (same); Electro Medical
Sys., S.A. v. Cooper Life Sciences, Inc., 34 F.3d 1048, 1056
(Fed.Cir.1994); Read Corp. v. Portec, Inc., 970 F.2d 816, 828
(Fed.Cir.1992); Stickle v. Heublein, Inc., 716 F.2d 1550, 1565
(Fed.Cir.1983) (intent and reasonable beliefs are the primary focus of a
willful infringement inquiry).

2)	Specifically, in determining the question of willfulness, the primary
consideration is whether the infringer acted in disregard of the
infringed patent with no reasonable basis to believe it had a right to
do the acts in question. In the world of 2011/2012 this takes on a whole
new light in the legal context too.

3)	Pall Corp., 66 F.3d at 1221 (factfinder should examine whether the
infringer deliberately disregarded the property rights of the patentee);
Ortho Pharmaceutical Corp. v. Smith, 959 F.2d 936, 944 (Fed.Cir.1992)
(the focus of a willfulness inquiry should be on whether the infringer
had no reasonable belief for thinking it had a legal right to continue
its conduct).

So in this case what would they have to prove - that the IETF was
informed and it intentionally continued development of a intellectual
property which could not be implemented without the license of the
patent holder?

One who has actual notice of a patent owner’s rights has an affirmative
duty to respect those rights. Read Corp., 970 F.2d at 828 (citing
Rolls-Royce, Ltd. v. GTE Valeron Corp., 800 F.2d 1101, 1109
(Fed.Cir.1986)); Avia Group, Int’l, Inc. v. L.A. Gear California, Inc.,
853 F.2d 1557, 1566 (Fed.Cir.1988).

The issue of willfulness “rests on a determination of the infringer’s
state of mind,” Mahurkar v. C.R. Bard, Inc., 79 F.3d 1572, 1579
(Fed.Cir.1996), and “includes elements of intent, reasonableness, and
belief,” Pall Corp., 66 F.3d at 1221. Among the grounds for a
willfulness finding are “[t]he extent to which the infringer disregarded
the property rights of the patentee, the deliberateness of the tortious
acts, or other manifestations of unethical or injurious commercial
conduct.” Hoechst Celanese Corp. v. BP Chems. Ltd., 78 F.3d 1575, 1583
(Fed.Cir.), cert. denied, 117 S.Ct. 275, 136 L.Ed.2d 198 (1996). No
hard-and-fast rules govern the willfulness determination, which should
be made after evaluating all the relevant circumstances. Graco, Inc. v.
Binks Mfg. Co., 60 F.3d 785, 792 (Fed.Cir.1995). Willful infringement
must be proven by clear and convincing evidence. Pall Corp., 66 F.3d at
1221; In re Hayes Microcomputer Prods., Inc. Patent Litig., 982 F.2d
1527, 1543 (Fed.Cir.1992).

So... we should take notice about these issues as a new hurdle. The
research part of the IETF has nothing to do with production standards -
they are joint development agreements to specifically take a protocol
model and implement it as code...

If you would like to get the IETF's lawyers to formally - and on their
legal letterhead swear this is not true - which based on the case law
cited - they are not going to get anywhere near I bet, then  OK.
Otherwise everyone now has a new problem with the IETF and that is that
the participants and their sponsors are liable for this damage per these
standards.

Todd Glassey
-- 
Todd S. Glassey
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