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Re: MP3 decoder packaged with XMMS

On 7/12/05, Dan Ravicher <ravicher@softwarefreedom.org> wrote:
> > Mr. Ravicher's public statements on legal matters appear to be largely
> > conformable to the law as I understand it (IANAL), with the exception
> > of his repetition of the canard that it is the knowledge of the
> > particular patent number infringed by a product that puts you at risk
> > of triple damages.  In reality, willful ignorance is no more and no
> > less willful than looking up the patent numbers on the packaging and
> > assessing the scope of patent claims yourself.
> You are completely wrong on this point.  Willful infringement under
> patent law requires the infringer to have had actual knowledge of a
> patent.  Without actual knowledge, one cannot be found to have infringed
> a patent willfully.  If you point me to authority you believe suggests
> otherwise I would be happy to address it.

As I said, no more and no less.  A finding of willful infringement
usually reflects continued use and/or sale of infringing products,
after receiving notice from the patent holder, without a reasonable
basis for belief that the patent is invalid or inapplicable.  "Actual
knowledge" doesn't strictly require notice from the patent holder, but
as far as I know courts don't take seriously random press releases
saying "all 'one-click' e-commerce transactions (use of the Linux
support for FAT32, etc.) requires a patent license", with or without
the patent number.  Actual knowledge is a finding of fact governed by
a well understood corpus of law that doesn't smile on sticking your
fingers in your ears and shouting "la la la I can't hear you la la

This is not to say that there are no subtleties, or that the corpus of
law has been changeless.  Depending on the circumstances, there have
been times when consulting competent counsel, at a point when it could
reasonably be inferred that you knew you had a problem, was a bit of a
Catch-22, since a refusal to provide the resulting opinion during
discovery could be held against you; but that's not the case under
current law.  (And in any case, a failure to consult competent counsel
at the appropriate juncture was, and is, almost equally prejudicial.)

For the latest word (AFAIK, IANAL, TINLA) on the subject from the
Federal Circuit en banc, I recommend Knorr-Bremse v. Dana,
http://caselaw.lp.findlaw.com/data2/circs/Fed/011357v2.html .  This
ruling reversed the district court's finding of willful infringement
on very precise grounds:

The district court also considered Haldex's invocation of the
attorney-client privilege in order to withhold its opinions of
counsel, and Dana's failure to obtain an independent legal opinion
despite the warning and notice of infringement. The appellants argue
that but for the adverse inference of unfavorable opinions drawn from
these actions, the finding of willfulness of infringement is not
supported. Knorr-Bremse responds that willful infringement is well
supported by the remaining findings. Because elimination of the
adverse inference as drawn by the district court is a material change
in the totality of the circumstances, a fresh weighing of the evidence
is required to determine whether the defendants committed willful
infringement. This determination is the primary responsibility and
authority of the district court. We therefore vacate the finding of
willful infringement and remand for redetermination of the issue.

So the district court was advised, contrary to prior precedent, not to
penetrate attorney-client privilege and infer that Haldex would have
presented pre-trial opinion of counsel if it were favorable to their
case.  But in all other respects the Read v. Portec standard for
willful infringement was retained:

We took this case en banc to review this precedent [i. e., the
progression from Underwater Devices to Kloster Speedsteel to Fromson
in the previous paragraph -- MKE].  While judicial departure from
stare decisis always requires "special justification," Arizona v.
Rumsey, 467 U.S. 203, 212 (1984), the "conceptual underpinnings" of
this precedent, see id., have significantly diminished in force.  The
adverse inference that an opinion was or would have been unfavorable,
flowing from the infringer's failure to obtain or produce an
exculpatory opinion of counsel, is no longer warranted.  Precedent
authorizing such inference is overruled.

> > But note that, like
> > certain other, more senior, FSF associates, he has his own clever way
> > of turning FUD about IP law into revenues.  Read more at
> > http://www.computeractive.co.uk/vnunet/analysis/2132110/linux-patently-opportunity
> > and http://www.forbes.com/home/enterprisetech/2004/08/02/cz_dl_0802linux.html
> > .
> Yes, prior to forming SFLC with Professor Moglen, I represented some
> clients for fee.  I do not do so any longer.  However, having said that,
> I dispute that I have ever spread FUD.  In fact, I have helped minimize
> it.  The matter you cite is one where I quantified the previously
> indeterminable risk patents pose to the Linux kernel, which had been
> identified long before my work by Richard Stallman, HP, RedHat and many
> others.  I concluded that, although the risk patents pose to the Linux
> kernel is not zero, it is no larger than the risk patents pose to other
> operating system kernels and might actually be much less.

Must be nice not to have to "represent clients for fee" -- oh, except
for the ones where you switch from investigating them to accepting
their "donations".  Unless, of course, you wish to disclaim knowledge
of that [apparent, I have no personal knowledge, but I've already
posted links to a certain amount of public evidence] practice of the
FSF.  And you can't have it both ways: either you did your own patent
research, in which case you do no one any favors by withholding your
magic list, or your role in the OSRM was little more than to create
and publicly advocate a pricing policy for a vulture capitalist's
speculative lark on a lawsuit hedge.  Either way, it quacks like
deliberate FUD.

Oh, and for those reading at home -- did you follow the Forbes link
for an idea of the company that Mr. Ravicher used to keep before he
got a plum job with Eben Moglen playing Robin Hood?

OSRM's team includes "director of legal research" Pamela Jones, a
paralegal who runs a SCO-bashing Web site called Groklaw, and "lead
patent counsel" Daniel Ravicher, a 29-year-old lawyer in private
practice who last year started a foundation that claims half of the
patents in the United States are illegitimate.

Ravicher, who performed the patent analysis that turned up Linux's 283
possible patent violations, claims on his Web site that he has
"extensive experience litigating, licensing, prosecuting and otherwise
counseling clients with respect to patents." In fact, he has three
years of experience as an associate at two law firms in New York and
has never acted as lead counsel on any patent litigation.

Ravicher's online bio also claims that he "practiced law" at Skadden,
Arps, Slate, Meagher & Flom, one of the country's most prestigious law
firms. Actually, he spent eight weeks at Skadden as a summer intern
while he was still attending law school.

By that standard, I could claim to have practiced not only law but
secondary education, utility economics, AI research, spaceflight
operations, genetic research, particle physics (experimental and
theoretical), and weather simulation, in two US government agencies,
three universities and a high school, a Fortune 500 corporation and a
major law firm -- before I reached legal drinking age.

> > I question his use of statistics regarding such disputes,
> > however.
> I am happy to provide you support for the use of statistics I have made
> on which you have questions or issues if you will raise them with me.

Your "half of the patents in the United States are illegitimate"
(Forbes), or "third party requests for reexamination, like the one
filed by PUBPAT, result in having the subject patent either modified
or completely revoked roughly 70% of the time" (PUBPAT press release
on Lipitor case), are no better than another lawyer's "courts, in
recent years, have -- in patent infringement cases -- found the
patents claimed to be infringed upon invalid in approximately 80% of
the cases" (Underwater Devices. cited from Knorr-Bremse).  The Federal
Circuit, en banc, censured again (20 years later) the client who
relied on that latter statement for its "flagrant disregard of
presumptively valid patents without analysis".  This is the sort of
misrepresentation of the significance of a number that deserves the
phrase "lies, damned lies, and statistics".  (Mis?attributed by Mark
Twain to Benjamin Disraeli -- see
http://www.york.ac.uk/depts/maths/histstat/lies.htm .)

As you well know, many patent applications contain dozens of
progressively more specific claims, as insurance against invalidation
of an overly broad claim, either during the patent examination process
(which would be intolerably arduous if it were single-threaded) or in
light of an opponent's more thorough research of the prior art at some
stage of a legal proceeding.  Requests for reexamination almost always
happen either during the run-up to a lawsuit (where the alleged
infringer has serious reason to believe a claim is overbroad) or when
a patent applicant is rebutting the examiner's evidence of prior
patents (where the applicant has serious reason to believe that its
application will go forward if the disclosure in the prior patent
doesn't support all of its claims).

Judging from the breadth of the claims in the one patent on which I
appear as inventor (#5,438,360, if you're interested), I am astonished
that the proportion of reexamination requests that succeed in
invalidating at least one claim isn't closer to 99%.  If all claims of
that patent were to be taken seriously, whoever currently owns its
economic rights could probably claim that the motion estimation
subunits of all extant MPEG video encoders infringe it.  (Or they
could if the maintenance fee had been paid in 1999, which Google says
didn't happen.)  Knowing what I personally actually reduced to
practice, I think that would be a rather comical stretch of the
original legislative intent behind patent law.

Note to Steve Langasek: it's not clear whether you intended to invoke
Godwin's Law or the similarly ugly situations in Palestine and
Northern Ireland with your "collaborator" comment, but I do not care
to be on either side of any of those analogies.  If you had bothered
to check the debian-legal archives before attempting to rip me a new
one, you would perhaps have found that I, too, consider the current
USPTO to be wholly 0wn3d by large US corporations.  That doesn't
necessarily mean that I think any invention that can be expressed in
software form should automatically be unpatentable; but positions
between the two extremes, informed by personal experience and a close
reading of the primary literature, seem to be rare enough around here
that I suppose I should excuse your jumping to one conclusion or the

> > And even though these three patents appear to have been
> > chosen as low-hanging fruit, in two out of three cases it remains to
> > be seen whether the patentees will submit revised claims and obtain
> > reissuance of their patents.  "Office actions" of the kind issued in
> > the Lipitor and FAT-long-filenames patents are frequently issued in
> > the course of establishing what claims the patent examiner will allow
> > on the basis of a given disclosure, and narrower claims often succeed.
> True.  However, a narrower patent may nonetheless eradicate any public
> harm being caused by the patent by no longer capturing functionally
> equivalent design arounds.  Also, the FAT patent matter received a
> second office action about a week or so ago that again rejected all of
> its claims.

Did it have an X in the little box marked "FINAL"?  If not, you know
as well as I do (better, I hope, since you profess to be a practicing
patent attorney) that it's just the next move in a potentially very
long game.  During which, I might add, the risk to presumptive
infringers is not particularly lowered, and may even be raised.

> > If I were you I would be very, very cautious about inviting the SFLC
> > to hang its first test case on my project.
> I completely agree that potential clients should do research before
> retaining counsel and that both competency and other factors should
> impact the decision of what counsel to retain.  Without question,
> clients should retain counsel that they feel comfortable with and trust.
> However, just FYI, SFLC already represents a large number of clients, so
> no new client would be anywhere close to our first.  Also, Professor
> Moglen and I have been providing pro bono legal services to various free
> software clients for many years now.  The only thing that is new is that
> we have received a grant to enable us to grow a firm to expand our
> capacity.  If people wish to contact us about how we might be able to
> help them, terrific; if not, we wish them all the best.

There are many uses for the attorney-client relationship; if Professor
Moglen's letter on behalf of Vidomi is any indication, I would expect
the SFLC to be, shall we say, creative in these matters.  A large
number of clients need not imply that the first serious judicial
scrutiny of the SFLC's charter and tactics has yet to come.

Just out of curiosity -- has either of you actually spoken in court,
on behalf of a paying client, in a capacity as an attorney at law? 
While I have certainly read Mr. Moglen's "expert witness" affidavit in
Progress v. MySQL, and the LPF's amicus brief in Lotus v. Borland, I
have been unable to find any record of his (or your) litigating a
case.  Not that I've looked all that hard, mind you; and there are of
course many respectable ways to use a law degree that don't involve
speaking in court; but it's always interesting to see whether an
attorney's brief has ever made an impression on a judge, especially in
an appellate proceeding.

In fact, my limited experience as a paying client has taught me to
insist on the production of such evidence (at least at the district
court or state appeals court level) if there is any prospect of
actually litigating the matter.  And my limited experience as a pro
bono client has taught me to look gift horses in the mouth very, very

- Michael

(For the record, Mr. Ravicher, nothing personal.  But if I were you I
would choose another forum to peddle the SFLC's wares, at least until
you can demonstrate that it is something other than the "institute of
crack-smoking contract interpretation" cum ambitious copyright
assignment shakedown scheme that it looks like from here.  IANADD,
IANAL, TINLA, and coming from me it's just hearsay; but speaking as
one who has been deceived by an employer at an age similar to yours, I
hope you have looked closely at your own gift horse to see whether it
is of Greek provenance.)

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