On Fri, Feb 22, 2013 at 4:51 PM, Ben Cotton <bcotton@funnelfiasco.com> wrote:
On Fri, Feb 22, 2013 at 4:13 PM, Pamela Chestek <pchestek@gmail.com> wrote:
>  So how about instead of "initiate" is it "allege or threaten"?

That strikes me as being somewhat vague.

And that's a bad thing because ...? 

The threat of an event occurring has a much more significant long-term impact on business-decisionmaking than the event actually occurring. The attorney's role is to prevent lawsuits, so you accomplish much more by just making them nervous about the possibility, and the more uncertain the possibility is the more conservative they will be. So here it's ambiguity in favor of the open source licensor, which I think is a good thing.
 
Perhaps there's already
precedent for this kind of wording, but it seems like this would add
the need for more litigation. Initiating the suit seems like a pretty
clear-cut action, whereas allege or threaten is open to
interpretation. (see also: "it's not a threat, it's a promise").


There is a legal standard for the degree of threat that allows one to file a declaratory judgment claim (it's relatively easy to meet) which is the degree I'm thinking of here, although I don't think it's reducible to a reasonable number of words for this purpose.

I agree with the principle, but I'm not sure how it could be worded. I
suppose "allege or threaten" may be enough of a scare tactic to
prevent suits than a provision actually intended to be enforced?

The intent is not just to stop suits but even stop any suggestion of infringement. So any communication at all, public or private (including a press release) that mentions both a patent and a product I would consider at least an allegation of infringement (I briefly debated whether "threaten" was even needed--I don't know if it's possible for a "threat" to not also be an "allegation" but decided "threaten" allows for consideration of intent). I would want a company to think really hard about saying something like "we're looking at Foo in light of our patent portfolio" because their intent is to create uncertainty and therefore prevent adoption. I want there to be a strong disincentive for making the statement. 


Pam



--
Ben Cotton
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