The Dead Silence of Truth and Rodney Dangerfield
There has been a lot of claims from software companies in the recent days about “patent infringement” and how open source is infringing on a number of patents held by “x” (fill in the blank with your favorite high technology company.) Recently, one company stated publicly that open source violates their patents “but their not going to take legal action.” This seems to be the equivalent of the famous line by Rodney Dangerfield in “Caddyshack” when he says “nice shirt, but it looks good on you.” This is what is commonly referred to as a “drive-by” whereby there is no response. This is the easiest form of FUD currently available in the media.
However, in the world of litigation, this is something that needs to be fully examined to show how disingenuous this marketing tactic really is. Although I am not a specialist in intellectual property law, I am a litigator in the federal arena and a practicing attorney. As an attorney, when the opposing side throws a line out like this, I find it quite amusing. It is something that is said when you do not have the stomach or the legal case to go forward. I will explain.
First, if you are going to claim that somebody is violating your patent or patents, you should go to court and litigate. This is money and time that is allegedly being stolen by another company. I understand that benefit-cost analysis behind not litigating however for companies who go to court and litigate at the drop of the hat, something this significant and important should be a “no brainer” for litigation.
Second, all patents that have been allegedly infringed upon have already indeed been filed with the US Patent and Trademark Office (this is part of the process to exclude others from obtaining gains from your work.) This part of the paperwork is common and public record which can be looked up and inspected. So, if patents are being violated and crimes are being committed by another company, then there is absolutely no reason in not giving out the information of which patents are allegedly being violated. Since the patents are public record, then explain which public record documents are relevant and you believe will prove your point. Now comes the deafening silence by the disingenuous.
I suspect the reason that they do not want to litigate is that one little word that will stop them dead in their tracks: discovery. This is the process by which the other side is allowed to defend themselves in a court of law. When a high technology company, or any other company decides that their patents have been infringed upon, then if they do decide to go to court, they will have to open up their code and show the court (even if it is under sealed order) that their patents are infringed upon. This is the rule of law and they know it. This means that they will have to “show their cards” as they say. This is what SCO had to do and this is why they have been beaten into the dirt.
So the next time that you see these “drive by” statements from companies that have no intention of litigating these matters, please give their statements the scrutiny that they deserve and remember that these statements are very much like a comedian speaking in a comedy movie – just for laughs.
Joel H. Wolff
Attorney at Law