RE: Sun IPR statement on XPointer

["Bullard, Claude L (Len)" <clbullar@ingr.com>]

From: Steven J. DeRose [mailto:Steven_DeRose@Brown.edu]

>Actually, if their technical people have clue 1, they cannot believe 
>this. I suspect what they believe is what you said later, that no one 
>will bother fighting them. The patent is so utterly bogus there's not 
>the faintest chance they could defend it against a halfway competent 
>attack. I personally implemented 3 systems, each at least 3 years 
>prior to their application, that "infringe" it.

I have to agree that if Nielsen, et al had a "clue", they wouldn't have
applied for the 
patent.  On the other hand, the way the W3C and WWW came into being 
made intellectual burglary de rigeur.  "As the twig is bent..."  
The one bright spot is that a lot of this "looking the other way" was 
based on expectations of profit if the burglary was allowed to proceed 
without comment. 

Now that investors have had the change shaken out of their pockets, 
they are leary.  Perhaps this examples like this will 
make them reevaluate the applicants and ask if this is the kind 
of business partner they want. One can only hope.

>If you read the patent broadly enough for XPointer to infringe, then 
>HTML infringes it as well. Sun is clearly counting on not having to 
>fight it (sadly, given the way patent law is set up, that's a good 
>bet -- the reason we have myriad patents this foolish).

Yes.  Note the emphasis on "essential claims".  That forms the 
cluster they have to defend or others to defrock.

>>o  If XPointer is withdrawn, the IPR offer is void.

>I think the wording makes us safe vs. this. Note:

>"that are owned or controlled by Sun *at any time while* XPointer
>is on the Recommendation track *or after* XPointer has been adopted as a
>Recommendation"

>so once we go REC, they can't change it.

Yes.  I was noting that the strategy of starting another effort 
doesn't help if it covers the same technology.  One might want 
to look hard at XPointer in the abstract and see if there is a 
way to implement it that does not infringe on the "essential 
claims" or if it does, is also "defensible by dilution".

>I am, however, worried about the wording failing to cover the case 
>where Sun sells the patent to somebody else. It is only *Sun* 
>undertaking not to sue. If they create a 'Sun XPointer Suing Company" 
>and sell it the patent for $1, then SXSC can sue, right?

I don't know.  

>>o  Any attempt to create another specification to fill the role of 
>>XPointer willbe subject to the same patent claims without the protection
of 
>>the IPR offer.

>Of course; the holders of bogus patents almost never renounce them, 
>or allow them to go far enough in court to be legally invalidated; 
>they try to settle first and have the case closed, so any later 
>people have to fight it all over again.

Yep.  Exhaustion: the guy with the deepest pockets wins, brute 
force warfare.

The other response as I noted can be procedural.  You have sat on 
enough committees to understand this old strategy.  It does not 
necessarily remedy the local situation, but it makes it clear to 
all that steps can be taken to ensure that such bogus actions 
come at a high price and that can make companies think twice 
as they watch marketshare slip away by inches.  Wasping is effective, 
but tedious.  When Java was pulled back from the standards track, 
a lot of people changed their minds about it as a "standard" even 
where it is an effective technology.   The counter was to begin 
to erode the notion that standards were all that useful to begin 
with and so it goes.

len