Good news on crypto patents:

[Hagai Bar-El]

Hello James,

On 23/8/2007 02:25, James A. Donald wrote:
> Good news on patents, particularly crypto patents.
> 
> The CAFC, the US patent court, has recently ruled that the patent holder
> cannot hit you with punitive damages unless, on the preponderance of the
> evidence, you were objectively reckless - that you knew or strongly
> suspected you were violating the patent.
> 
> By and large, the remaining crypto patents are canned uncertainty and
> doubt, intended to muddy the water, patenting everything, anything, and
> nothing.  This previously worked in favor of the patent holder, but now
> it works against the patent holder.
> 
> The way it now works is that if you have an arguable case that you are
> not in violation of the patent, you can barge right ahead and wait for
> the patent holder to spend many millions of dollars and many years in
> court to clarify the situation.  Don't hold your breath.
> 
> This also negates the Microsoft tactic "If you use linux, you are
> violating our patents, but we will not tell you what patents you are
> violating, or what aspect of linux violates them".  Now, genuine
> uncertainty works *against* the patent holder.


The case you quoted seems to apply only for punitive damages. If this is
the case then I'm afraid the impact of this ruling will be to a lesser
extent than you hope...

When you infringe a patent, its owner is likely to sue you for
compensatory damages, claiming that you caused him lack of income, loss
of customers, etc. IIUC, punitive damages generally apply only where
compensatory damages are deemed an inadequate remedy or where some
deterrence effect is required.

With or without punitive damages added to the ruling against you,
compensatory damages alone can end up being a large enough stack of cash
to discourage you from infringing a patent, as long as you suspect its
owner may actually have a case.

Regards,
Hagai.

P.S. IANAL, of course.

-- 
Hagai Bar-El - Information Security Analyst
T/F: 972-8-9354152 Web: www.hbarel.com

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