RE: [xml-dev] Re: W3C ridiculous new policy on patents

[Jim Ancona <scarhill@yahoo.com>]

--- Joshua Allen <joshuaa@microsoft.com> wrote:
> My impression is that hobbyists and small companies really don't have to
> worry about large companies litigating against them, while large
> companies tend to worry a lot about smaller competitors or opportunistic
> hobbyists litigating.  If a hobbyist has even a reasonable chance of
> success, it is not difficult to find a lawyer who will litigate in
> return for a cut of any potential (likely out-of-court) settlement.  

We're talking about patents here. A hobbyist can't recover damages from patent
holder because the patent is invalid. Because they can't, it's very unlikely
that they'll find a lawyer to take the case on a contingency basis. The numbers
I've seen bandied about for litigating a patent have six or seven figures in
them. 

> On
> the other hand, large companies that litigate patents against smaller
> competitors often get counter-sued for anticompetitive behavior and lose
> impressively.  Litigating against much smaller competitors, let alone
> hobbyists, is a very high-risk and low-reward behavior for a large
> company.

So I'm working on an open source or hobby project. BigCo sends me a letter
claiming I'm violating their patent. I think their patent isn't worth the paper
it's written on. I can: 

a. Take out a second mortgage on my house to hire a patent attorney to fight
them. If I win, I get to continue working (uncompensated) on my project, or...

b. I can say, "Sorry, BigCo, I won't do it again. Please don't sue me!" If I'm
lucky they won't. If I'm unlucky, see a. above.

Which would you choose?

> Again, this is just my personal feeling, but it seems that patents are
> used in roughly the following descending frequency:
> 
> * Negotiation chip in cross-licensing agreements between two equally
> large competitors - never litigated
> * Desperate last-ditch competitive effort wielded by a weaker competitor
> against stronger foes - litigation drags on
> * Individual or small organization seeking big payout for patent
> infringement (deliberate or unintentional) - settled out of court
> * Large company acting very irrationally and trying to hinder a smaller
> competitor

I don't see why the last choice here involves "acting very irrationally". Given
the law, this last option is totally rational. The smaller competitor has
choices much like my hobbiest above, although, since it's a business, at least
it has a potential financial upside if it wins the suit. 

Jim

=====
Jim Ancona
jim@anconafamily.com                     jancona@xevo.com

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