[copyleft-next] copyleft-next patent commons?

Theodore Ts'o tytso at mit.edu
Fri Feb 22 20:42:26 UTC 2013


On Fri, Feb 22, 2013 at 04:50:54PM +0000, Gervase Markham wrote:
> 
> In other words, if you sue someone over a patent in a copyleft-nexted
> work, you lose rights to use all copyleft-nexted works. As
> copyleft-nexted works become more common and more useful (say e.g. a
> copyleft-nexted work was incorporated into Android) it would become more
> and more of a bad idea to sue anyone for patent infringement relating to
> such work. After all, in that case, the first thing you'd have to do is
> replace all the company Android phones with iPhones...

Although I'm not a lawyer, my understanding is that there are times
when a company might need to preemptively launch a patent lawsuit so
they can control which venue a particular legal action might take
place (i.e., to avoid East Texas :-), where the company might not
necessarily be viewed as the patent aggressor, because it's the other
company that has been firing off lawsuits in all directions in
multiple different countries.

Also, once a lawsuit has been engaged, even if one side didn't start
the lawsuit, they really do need to assert any patent counterclaims
they might have, just as a defensive move and because if they don't,
they'll never hance the chance to do so again.

It might be useful to consider how to make sure such a language
doesn't accidentally snare a company that didn't intend to start the
patent war, but which has been forced to take certain measures just to
defend themselves in potentially multiple legal jourisdictions, and to
control which legal jourisdiction an individual battle might take
place.  Just because a company initiated a particular battle in one
country does not necessarily mean that the company was the one which
initiated the world-wide patent war / scorched earth policy....

(Obligatory disclaimer; I am speaking only hypothetically, and not
referencing any particular legal action specifically.  Also, my
comments reflect my own opinions and do not necessarily reflect the
opinions of my employer....)

						- Ted


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