Re: [TLS] Last Call: draft-ietf-tls-extractor (Keying Material

[Dean Anderson <dean at av8.com>]

On Tue, 21 Jul 2009, Martin Rex wrote:

> I'm not aware of information that the Certicom patents apply to TLS
> extractors.
> 
> I'm not even aware of information that Certicom claims that the patent
> applies to TLS extractors when ECC crypto is used.

Actually, you are "aware" of these patents by any reasonable standard,
because you are "aware" of IPR disclosure 1004 and you are "aware" of at
least this discussion informing you of the patents.  Willfully
disregarding the patent notices does not make you "unaware", but just
serves to discredit any defense your lawyer might raise against charges
of intentional infringement.  To put it as plainly as possible, if the
demand letter from the patent holder isn't the first time you heard of
the patent, you might have a problem with intentional infringement. At
that point, it is often too late to challenge the validity of the
patent.


> The information that I've seen is that the Certicom patent claim
> "covers" TLS extractors when TLS is used with ECC crypto, and they
> acutally imply that their patents claims "cover" pretty much all
> standards around TLS when TLS is used with ECC crypto.

Some of their patents are indeed very broad in scope.

> TLS extractors is essentially the TLS PRF exposed with an API, so
> really, for IP lawyers, TLS with extractors has the exact same attack
> surface as TLS without TLS extractors.

If this is an argument against the validity of a patent, you should
bring it to the patent office. This body cannot challenge the validity
of a patent.  Except in certain circumstances, a court cannot challenge
the validity of a patent.

It is unwise to ignore a patent, since a court is to presume the
validity of a patent.  Court cases, like Bilsky, that invalidate a
patent, invalidate a whole class of patents when their reasoning is
statutory or constitutional. (Bilsky is statutory and if upheld, may
invalidate all software patents--unless Congress alters the law)  When
one wins an ordinary patent case, it is usually a factual matter that
the claims don't actually cover the use, or the other party has
committed some misconduct (eg. Qualcomm v. Broadcomm).  That you think
the patent is a bad patent that should never have been granted isn't a
valid legal reason to ignore a patent.


		--Dean


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