Re: [TLS] Proto write-up for TLS exporter

[Dean Anderson <dean at av8.com>]

On Thu, 14 May 2009, Nicolas Williams wrote:

> On Thu, May 14, 2009 at 06:20:12PM +0200, Badra wrote:
> > Well I am not asking the authors to do a survey on existing patents, BUT on
> > identified ones, which are in our case Certicom's Patents.
> 
> You clearly missed the point.  My advice w.r.t. other people's patents
> is worthless to anyone but my employer or myself, and since I'm not an
> IPR lawyer my advice on such matters (beyond "go talk to your lawyers")
> is utterly worthless.  Why would ask me, or anyone else, for it, then?
> 
> Would you really risk your business on my legal advice when we have no
> business relationship at all?

Whether a document infringes a patent isn't a legal opinion; Its a
technical, factual opinion with legal consequences.  Its a technical
opinion that you are able to honestly answer. Of course, its just as
possible for one to dishonestly answer a technical question; but the
point is that its not your legal opinion that would have us concerned.

> Worse, forcing one to come up with such advice and publish it would be
> detrimental to one's legal position should one get sued.  Which is why
> any sensible authors should (would!) simply stop participating if your
> suggestion were IETF policy, or even just WG policy.

Its only detrimental if its found to be dishonest in some way. 'Anything
you say can be used against you' is a warning not to lie; not an
inducement to withhold truthful statements.  But true statements usually
doesn't work against you, unless, for example, you say it infringes,
then you infringe anyway. In that case, the truth damns you.

This gives a decision-trust tree that allows trust to be placed in the
(non-patent-owning/employed) author when they say something /does/
infringe (because it increases their expenses), but not when the author
claims the patents don't infringe (because it reduces their expenses).  

But, of course, it is indeed much better if the patent owner says it
doesn't infringe. If the patent owner says that, and we rely on their
statement, then they might have 'unclean hands" for having deceived us
if they try to sue for infringement later.

		--Dean

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