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Re: Formal Objection to One vendor, One Veto

From: Silvia Pfeiffer <silviapfeiffer1@gmail.com>
Date: Fri, 17 Jul 2009 10:44:06 +1000
Message-ID: <2c0e02830907161744ob0a909cneda9a84fcf77ff0a@mail.gmail.com>
To: Chris Wilson <cwilso@microsoft.com>
Cc: Shelley Powers <shelleyp@burningbird.net>, Lachlan Hunt <lachlan.hunt@lachy.id.au>, Sam Ruby <rubys@intertwingly.net>, "www-archive@w3.org" <www-archive@w3.org>, "Michael(tm) Smith" <mike@w3.org>, Dan Connolly <connolly@w3.org>, "public-html@w3.org WG" <public-html@w3.org>
On Fri, Jul 17, 2009 at 1:45 AM, Chris Wilson<cwilso@microsoft.com> wrote:
>
> However, the critical point here is that patent holders go after the money - and the money is traced back through the chain of what an infringer is making off use of the patent.  Although Google has large revenues, you cannot trace the bulk of their revenues back to usage of the Chrome browser; so they're less attractive.  On the other hand, Microsoft has very large revenues, and a large portion of that comes from Windows, and IE is part of Windows; that's why the original award in the EOLAS lawsuit was such a large number, because it was essentially a portion of Windows revenue.  Obviously, Apple (given their inclusion of the browser into their flagship product operating system) would be another prime target.

This is good to understand. So, if YouTube was to support Ogg Theora,
then presumably Google would be a bigger target.

>>... or the encoders could get adapted to work around such a patent (if
>>it really existed). Since it's all built on open source, a rollout of
>>such fixes would be relatively painless.
>
> Possibly (could work around) - wouldn't know until the (hypothetical) patents were analyzed.  But the supposition of open source solving the rollout problem isn't true; open source vs. closed source is irrelevant to the rollout problem, it's only relevant to finding an algorithmic solution.

Yes, that's fair enough. Rollout is dependent upon users upgrading
their software and you get similar problems no matter whether people
use open or closed source.

It is, however, easier with open source software to have any expert
donate their experience to creating the work-around in the first
place.

>>>>secondly - the preparation of adoption of Theora as part of a
>>>>standard, and as part of that preparation there needs to be a call for
>>>>any patent holders to step forward within a given time frame. If such
>>>>a call was widely distributed and the distribution documented, a court
>>>
>>> I don't know if that would have any legal standing.  (I'm not saying it wouldn't - I'm saying I'll well out of my depth and cannot respond.)
>>
>>IIUC, the knowledge about the standards were a large part of what
>>helped in the two cases that I cited in previous emails on this thread
>>to be thrown out of court. So, I would think that such an approach
>>would help courts dismiss submarine patent claims. But IANAL.
>
> In the Alcatel-Lucent case, I thought it was just that the court decided the technique was not infringing, and in the other, a standards effort was participated in "in bad faith" or something?  I guess my point was that I'm not aware if you can do a "patent roll call" - I've never heard of that before.

I think patent roll calls are usually done within a standards body to
get everyone who is involved in creating the standard to step forward
and register their demands on the patent pool at the given time. I
have indeed taken this concept out of that context and suggested using
it for a different but related purpose. Until we see such an approach
tested in court, we will probably not know if it can have the effect
that I am hoping for. But it's an idea and it would be nice if there
was a lawyer to comment on its potential.

Regards,
Silvia.
Received on Friday, 17 July 2009 00:45:08 GMT

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