[License-discuss] Disclosure of patents by Apache projects

[Lawrence Rosen]

John Cowan wrote:
> However, if Citrix *had no actual knowledge* of the '011 patent,
> I think it would have been much more difficult for SSL to establish
> the other subprong of the subjective prong, that the infringement
> was so obvious that Citrix should have known about it.


On the other hand, see http://en.wikipedia.org/wiki/Willful_blindness: 

"Willful blindness (sometimes called ignorance of law, willful ignorance or
contrived ignorance or Nelsonian knowledge) is a term used in law to
describe a situation in which a person seeks to avoid civil or criminal
liability for a wrongful act by intentionally putting him or herself in a
position where he or she will be unaware of facts that would render him or
her liable.

"For example, in a number of cases, persons transporting packages containing
illegal drugs have asserted that they never asked what the contents of the
packages were and so lacked the requisite intent to break the law.

"Such defenses have not succeeded, as courts have been quick to determine
that the defendant should have known what was in the package and exercised
criminal recklessness by failing to find out.

"A famous example of such a defense being denied occurred in In re Aimster
Copyright Litigation, 334 F.3d 643 (7th Cir. 2003), in which the defendants
argued that the file-swapping technology was designed in such a way that
they had no way of monitoring the content of swapped files. They suggested
that their inability to monitor the activities of users meant that they
could not be contributing to copyright infringement by the users. The court
held that this was willful blindness on the defendant's part and would not
constitute a defense to a claim of contributory infringement."



-----Original Message-----
From: John Cowan [mailto:cowan at mercury.ccil.org] 
Sent: Sunday, May 24, 2015 9:39 PM
To: lrosen at rosenlaw.com; license-discuss at opensource.org
Cc: 'Legal Discuss'
Subject: Re: [License-discuss] Disclosure of patents by Apache projects

Lawrence Rosen scripsit:

> I read the CAFC decision you referenced in your email: SSL Services, 
> LLC v.  Citrix Systems 
> <https://scholar.google.com/scholar_case?case=9194570733323971805&hl=e
> n&as_s dt=6&as_vis=1&oi=scholarr> , 769 F.3d 1073 (Fed Cir. 2014). 
> Even though willful damages were awarded there, I don't think it makes 
> the argument for you.

I'm not sure what argument your interlocutor is making here.  I think,
however, that it does not exclude *my* argument that reading patents is
dangerous, though I agree it doesn't compel it either.

> As in all willful infringement cases, facts matter. Citrix was not 
> allowed to use its own Chief Engineer's expert opinions about the 
> patent to justify its opinion about non-infringement. ("As for 
> Murgia's personal beliefs regarding non-infringement, the fact that 
> they were beliefs formed by a lay person without the benefit of the 
> court's claim construction determinations rendered them of little 
> probative value and potentially prejudicial.")

Doubtless.  But the key point is that Citrix knew about SSL's patent and
thought it didn't apply, and the Patentees' Circuit found that that didn't
exclude a finding of wilful infringement on the subjective prong.
(The terms "objective" and "subjective" are IMO misapplied, but let that
go.)  However, if Citrix *had no actual knowledge* of the
'011 patent, I think it would have been much more difficult for SSL to
establish the other subprong of the subjective prong, that the infringement
was so obvious that Citrix should have known about it.

> None of this even hints that an engineer reading a patent and 
> commenting on it in a NOTICE file is a risky behavior.

I think it does hint at it, for the reason I give above.

-- 
John Cowan          http://www.ccil.org/~cowan        cowan at ccil.org
Not to perambulate the corridors during the hours of repose
in the boots of ascension.       --Sign in Austrian ski-resort hotel