Subject: Re: Unencumbered Checking (was Re: DEPLOY: SPF/Sender ID support in Courier)

From: "David H. Lynch Jr." <[email-masked]>
Date: Sat, 04 Sep 2004 05:23:12 -0700

Anne P. Mitchell, Esq. wrote:

    But real people in the real world have to make decisions and they 
have to go forward. One of the problems I have with lawyers - and my 
wife is one, is that of course life comes with no guarantees. But in the 
end one must do something. A lawyer can tell you what the potential 
worst case scenario is, they can help you get out of the trouble that 
you are in, but it is extremely rare that you can get one to tell you 
what your best choice is - aside from do nothing, when there are no 
perfect choices.

    It does not matter whether it is Microsoft or HP, or a patent 
holding company. There is a claim without any support that the current 
draft includes IP that would require a license.

    The details of the license does not become relevant until you decide 
whether the claim has merit. The burden for testing the claim is very 
low. I do not think it is wise to try and become IP lawyers over this, 
but the burden is not non-existent. Because "we say so" is just not 
sufficient.. The fact that the claim is nebulous and unknown does not 
make it stronger. It makes it weaker.

    The unknown may be a scary place to be, but it is where we are. It 
is also not far from where we would be if Microsoft had not made a 
nebulous claim of IP rights.

>
> This brings up a point which has been rolling around in the back of my 
> head for a few days.
>
> We simply _don't_ know what is in the claim.  In any other area where 
> adoption of some program is to be impacted or encumbered in some way 
> which could cause either a legal liability or an inability to actually 
> implement on the part of the adopter - particularly such a potentially 
> widely used program - it is inconceivable that people would be even 
> considering adopting, or recommending, the program.  In fact, if one 
> had a professional license, and recommended adoption of such a program 
> without a clear understanding of the encumberance, one could be guilty 
> of malpractice.  But I digress...what has been rolling around in the 
> back of my head is this:
>
> Can anyone say with 100% certainty that there is *zero* technology, 
> software, or process, which can be reasonably argued by Microsoft to 
> belong to them, with regards to *checking*?   Bear in mind that I have 
> some experience in patenting this sort of technology (I have been 
> involved in the patent work on the Habeas "technology", among others, 
> and I put that word in quotes because if you look at the Habeas model 
> I'm guessing many of you would be shocked to realize just how much 
> *is* patentable as "technology").
>
> Ok, I'm going to guess that some of you  might say "yes" to the 
> above.  So, let's put it another way now:
>
> Is the method for checking under Sender I.D. *identical* to the method 
> for checking for SPF?
>
> Imagine a world where some day you have to pay for a site license to 
> be able to perform a check.  Where the only receiver who *doesn't* 
> have to pay to perform checks is Microsoft itself.
>
> Again, this is not Microsoft bashing - I personally believe that *any* 
> large receiver owning the ultimate rights to an authentication system 
> is a conflict of interest.
>
> And to be honest, for the life of me, I don't understand why SPF, 
> which already had a lot of support from other corners, isn't what's 
> being pushed now.  Although, of course, for all we know (and I very 
> much suspect) SPF is probably now in some way encumbered by MS 
> anyways.  It would be foolish of them to embrace and incorporate SPF 
> technology without first making sure that they darned well owned it.  
> Just like any other acquisition - you can either put the competitor 
> under, or acquire them.
>
> Anne
>
>

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From: Stephane Bortzmeyer <[email-masked]>
Date: Fri, 3 Sep 2004 11:54:30 +0200

On Mon, Aug 30, 2004 at 11:01:38PM -0400,
 David H. Lynch Jr. <[email-masked]> wrote 
 a message of 89 lines which said:

>       Regardless of whether software should be patentable (or
> business methods, or ...) and regardless of the fact that trivial
> "improvements" should not be patentable no matter what. We live in a
> world where they are.

"A world"? You mistake the United States of America for the World. In
Europe, software patents are currently illegal. (And frivolous/trivial
patents like the Microsoft patent we talk about are a good reason why
it should stay that way.)

See http://swpat.ffii.org/ for details.