Subject: You need to be aware that US Patent Laws have evolved and intentionally violating them is actionable no matter what the IETF tells you...

From: todd glassey <[email-masked]>
Date: Mon, 08 Aug 2011 13:58:23 -0700

That means the IETF and the Chair's role itself can be sued for this. I 
suggest you folks investigate this and rethink the IPR rules because 
this makes ISOC criminally liable for this action as a RICO claim one 
would think.

Folks- there is a fundamental legal breakdown with two key issues - the 
first is PATENTS and the IETF's Liability and the other is the abuse of 
the RESEARCH EXEMPTION which will not apply to anyone outside of the 
IETF workflow republishing anything from these mailing lists.

How this all boils down is that we have been lied to by many here who 
apparently want us to be legally accountable for patent and copyright 
damages - or they want to destroy those global IP protection schemes 
generally in what I call the "The world owns it because I wont pay for 
the fact I stole it" mindset.

The legal precedents are simple and show how incompetent the IPR WG has 
been in designing practices which intentionally break the law this 
content from the Ninth Circuit District Court's Jury Instructions book 
is excerpted.  This then, if there is a liability,  is most likely what 
your sponsors are in fact liable for.
---

    In the area of patent and copyright infringement, there is some
    authority for submitting the issue of willfulness to the jury. /See,
    e.g., Shiley, Inc. v. Bentley Lab./, 794 F.2d 1561, 1568 (Fed.
    Cir.1986) (applying 35 U.S.C. § 284), /cert. denied/, 479 U.S. 1087
    (1987).

    "Willful infringement carries a connotation of deliberate intent to
    deceive. Courts generally apply forceful labels such as
    'deliberate,' 'false,' 'misleading,' or 'fraudulent' to conduct that
    meets this standard." /Lindy Pen Co. v. Bic Pen Corp/., 982 F.2d
    1400, 1406 (9th Cir.1993) (also citing cases in other circuits
    regarding elements of a willfulness claim). /See also Committee for
    Idaho's High Desert, Inc/.,/v. Yost/, 92 F.3d 814, 825 (9th
    Cir.1996) (the term "exceptional" in 15 U.S.C. § 1117(a) for
    purposes of imposing treble damages, generally means the
    infringement was "malicious, fraudulent, deliberate or willful")
    (citing /Lindy Pen Co./, 928 F.2d at 1408);/Nintendo of America,
    Inc. v. Dragon Pacific Int'l/, 40 F.3d 1007, 1010 (9th Cir.1994)
    (where defendant willfully infringes trademark, trebling the damages
    is appropriate);/VMG Enters. v. F. Quesada & Franco, Inc/., 788 F.
    Supp. 648, 662 (D. Puerto Rico 1992) (treble damages granted when
    defendant's infringing actions are deemed to have been made
    "knowingly and willfully");/Polo Fashions v. Rabanne/, 661 F. Supp.
    89, 98 (S.D. Fla.1986) (in absence of extenuating circumstances,
    profits are to be trebled where counterfeiting is intentional and
    knowing).

    Regarding willful blindness, /see//Hard Rock Café Licensing Corp. v.
    Concession Servs/., 955 F.2d 1143, 1149 (7th Cir.1992) (to be
    willfully blind, a person must suspect wrongdoing and deliberately
    fail to investigate); /Chanel, Inc. v. Italian Activewear of
    Florida/, 931 F.2d 1472, 1476 (11th Cir.1991) (willful blindness
    could provide requisite intent or bad faith; determination of
    willful blindness depends on the circumstances and will generally be
    a question of fact for the factfinder after trial).

    A court may enter judgment for a damage award under 15 U.S.C. §
    1117(a) upon a finding of willfulness as well. /See Sealy, Inc. v.
    Easy Living, Inc./, 743 F.2d 1378, 1384 (9th Cir.1984) (district
    court found that conduct constituted willful and deliberate bad
    faith infringement of plaintiff's trademarks that was intended to
    and in fact did result in deception of the public); /Friend v. H.A.
    Friend & Co./, 416 F.2d 526, 534 (9th Cir.1969) (defendant's acts
    must be willful and calculated to trade upon the plaintiff's
    goodwill). /See also Horphag Research Ltd. v. Pellegrini/, 337 F.3d
    1036, 1042 (9th Cir.2003) ("Exceptional cases include cases in which
    the infringement is malicious, fraudulent, deliberate, or willful)
    and/Gracie v. Gracie/, 217 F.3d 1060, 1068 (9th Cir.2000).

---

What this finally reduces to is that we need a NEW PATENT AND IP POLICY 
and since all specific IETF Standards efforts come with code to 
implement and allow testing of the protocol in question, it is in fact a 
direct infringement. While the IETF is protected from these issues in 
publishing the documents - its members are not. And the IETF's copyright 
exemptions under section 107 clearly do not apply to parties publishing 
that information as part of their commercial offerings years later after 
all of that research is completed...

Sorry but reality is what it is.

Todd Glassey

-- 
Todd S. Glassey
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