RfC: Is it Legit service

RBX

Hello All

Just wanted to get some comments on an idea I had.

As I understand it, one of the biggest problems for Irish Businesses is Legal uncertainty. Citing a few examples from the IT industry, which is where my background is, it is not uncommon for incumbents to use Legal FUD ( Fear Uncertainty and Doubt ). Larger fish with deeper legal pockets can also intimidate smaller fish, stopping them from doing something legitimate, since the legal expenses defending their legitimate business would be prohibitive.

To address this problem I suggest a court service, where you outline your situation to a Judge, including a list of parties potential to dispute the legality of your situation. Once the Judge has heard all relevant submissions, if he's satisfied that what you're doing is Legal, and that you've followed the process correctly ( including reasonable efforts to find any reason why it would not be Legal ), he would issue a certificate of Legality. If he was not prepared to issue such a certificate, he'd need to outline what exactly is ( not what might be ) illegal about the situation.

Such a certificate would render the holder immune from direct legal action against his or her situation. An other party could later challenge the certificate of legality; They'd need to prove that such a situation was in fact illegal, but legal penalties would only accrue from ( for example ) 30 days after the certificate was ruled invalid.

Scenario:
Lets say a hypothetical company ( lets call it zamzung ) creates a mobile phone. They would apply for a certificiate of Legitimacy for the sale of the mobile phone. Hypothetical interested parties ( lets call them Nozia, apzle, and zoozle ), would be invited to give submissions. If after all these submissions were given, the certificate of legitimacy was granted, zamzung could then trade freely, secure in the knowledge that they were immune to legal action. If Apzle were to discover that zamzung had in-fact broken the law, they could apply to have the certificate revoked. If the certificate was revoked by a court on 1 Mar, zamzung would have until the 30th of Mar to modify their product before penalties would become due.

Procrastastudy

I don't know if you're aware of the Re Article 26 procedure. The president my refer a bill to the Supreme Court to check for it's constitutionality and if passed it is immune from challenge. Basically take all the criticisms of that and you have a number of reasons against this.

I believe there would also be a number of constitutional issues with such a scheme. However I do admit that naming them is beyond me at the moment.

Also what about zlittle guy who never who can't afford to keep making submissions but finds his IP was infringed upon?

jblack

Not sure how referring a bill is relevant.

An application can be made to Court to check legality, or decide on potential future breach - a good example being Healthcare NHS Trust v London and. Quadrant Housing Trust [ 1998] 1 WLR 1749 - where the legality of an easement was determined before a project began. An applicant can seek a declaration.

I would also imagine that the injunction procedure would cover many of the issues you have raised in your OP.

Procrastastudy

jblack wrote: »

Not sure how referring a bill is relevant.

I thought there were similarities - e.g. dealing with issues in the abstract, the difficulty of future challenge has been criticised - I'm could very well be wrong but to be fair this is one of the few true hypotheticals.

ResearchWill

As you cite a reason for this scheme is that a small fry can't afford littigation. Well how is littigation avoiding the cost of littigation. Also any deceleration would only cover the country in which it was granted, unless all other countries signed up to a treaty.

As is seen in the recent Samsung case wher a US court found for apple while a South Korean and UK court have found for Samsung.

While the system you propose could work if the matter in non contentious any fight will cause huge expense. Also with for example patents you might not know who really has a relevant patent and in which country. What happens if your product may or may not infringe a few hundred patents held by a dozen companies in six countries.

johnnyskeleton

RBX wrote: »

Hello All

Just wanted to get some comments on an idea I had.

As I understand it, one of the biggest problems for Irish Businesses is Legal uncertainty. Citing a few examples from the IT industry, which is where my background is, it is not uncommon for incumbents to use Legal FUD ( Fear Uncertainty and Doubt ). Larger fish with deeper legal pockets can also intimidate smaller fish, stopping them from doing something legitimate, since the legal expenses defending their legitimate business would be prohibitive.

To address this problem I suggest a court service, where you outline your situation to a Judge, including a list of parties potential to dispute the legality of your situation. Once the Judge has heard all relevant submissions, if he's satisfied that what you're doing is Legal, and that you've followed the process correctly ( including reasonable efforts to find any reason why it would not be Legal ), he would issue a certificate of Legality. If he was not prepared to issue such a certificate, he'd need to outline what exactly is ( not what might be ) illegal about the situation.

Such a certificate would render the holder immune from direct legal action against his or her situation. An other party could later challenge the certificate of legality; They'd need to prove that such a situation was in fact illegal, but legal penalties would only accrue from ( for example ) 30 days after the certificate was ruled invalid.

Scenario:
Lets say a hypothetical company ( lets call it zamzung ) creates a mobile phone. They would apply for a certificiate of Legitimacy for the sale of the mobile phone. Hypothetical interested parties ( lets call them Nozia, apzle, and zoozle ), would be invited to give submissions. If after all these submissions were given, the certificate of legitimacy was granted, zamzung could then trade freely, secure in the knowledge that they were immune to legal action. If Apzle were to discover that zamzung had in-fact broken the law, they could apply to have the certificate revoked. If the certificate was revoked by a court on 1 Mar, zamzung would have until the 30th of Mar to modify their product before penalties would become due.

Right. So out of fear of going to court for some future hypothetical claim that might never arise, everyone is required to go into court in advance in the off chance that it is illegal?

Well, lawyers will love this proposal because it means ten times the work, but it will put companies out of business.

In your scenario, who pays for the competitors legal costs? Moreover, it's a lot easier to oject to your competitors product when invited to instead of actually having to bring your claim. So there would evolve a species of litigation whose sole purpose is to frustrate r delay the granting of a licence.

So I fail to see any benefit to business and it would also cripple smaller businesses far more than can happen now.

RBX

Procrastastudy wrote: »

Also what about zlittle guy who never who can't afford to keep making submissions but finds his IP was infringed upon?

I don't think that would be fundamentally different from the current situation, other than that the little guy couldn't sit back wait until his IP became mainstream, and then pounce on the victim who had unwittingly been distributing his IP for years.

The little guy could get the certificate of legitimacy revoked through a court hearing, but could only claim damages for violations having taken place a reasonable time after the certificate was revoked.

Scenario:
Alpha Ltd secures some obscure patent.
Bravo Ltd, launch a technology which unwittingly infringes on Alpha Ltd's patent.
5 years later Alpha notices this infringement and sues.

Now the fork:
If Bravo Ltd had one of the Legit Certs I'm proposing, Alpha could sue, have the cert revoked ( To do so they'd have to clearly state what aspects of the situation were illegal and why ), and claim damages for any infringements in years 6, 7, 8 etc.

If Bravo didn't have a Legit Cert, as is the current situation, Alpha could simply wait another few years, and sue for multiple years of unwitting infringement.

As you cite a reason for this scheme is that a small fry can't afford littigation. Well how is littigation avoiding the cost of littigation.

While the system you propose could work if the matter in non contentious any fight will cause huge expense.

The idea is that because applying for a Legit Cert would take place before a major investment, that the stakes wouldn't be as high at that point, and therefore that would be cheaper litigation, than damages litigation later on where each party has more to lose. Essentially there wouldn't be as much to fight about.

Also any deceleration would only cover the country in which it was granted

Agreed, but that limits, rather than eliminates the value of such a system. In some cases protection in one jurisdiction would be enough, particularly if an entity was only operating in that juristiction. Boards.ie itself would be an example of where such a service would be useful. Lets say hypothetically some company threatened boards.ie with libel. I'm not sure if I'm allowed to cite the case ( it was banned at one point ), but I'm sure you know which one I'm talking about.

An application can be made to Court to check legality, or decide on potential future breach

I was unaware of that - I thought you had to be sued first. I will look into the cases you cite.

Also with for example patents you might not know who really has a relevant patent and in which country. What happens if your product may or may not infringe a few hundred patents held by a dozen companies in six countries.

Having a legit cert with the properties described above, even if only in the US and Germany, would significantly reduce your exposure to damages.

Procrastastudy

I'm probably mis-understanding some of this but isn't this awfully like a patent?

RBX

No; you don't have to go to court in advance if you don't want to. You would just have the option, to cover yourself in-case someone sued you down the road when your product hit the big time, The point is here that if someone objects, they have to clearly and specifically outline why ( you can't just say this infringes 256 patents without specifying which ones ). You'd also have the option, if you felt you were reasonably safe in todays situation to just carry on without such a cert.

I suspect lawyers will actually hate it, since it would reduce the amount of work they get. There would be low stakes at these hearings, and therefore not a lot to fight about. If Apple and Samsung had engaged in such a process, Samsung could have simply made their phone look different, which supposedly infringing on Apples rights.

I don't know yet who would pay all the legal costs. But amount-wise, since they'd be significantly cheaper than a full-blown trial, the costs would be negligible compared to costs in todays system.

This wouldn't be a licence - you can start trading whenever you want. You might only choose to secure such a cert when a third party starts trying to intimidate you. It would significantly reduce the risk in starting a smaller business, and would allow them to thrive.

The process, but not the product would be similar to a patent. While patents ( particularly in modern day IT ) are used to intimidate or control others, this certificate would merely prevent others from intimidating and controlling you.

ResearchWill

RBX wrote: »

No; you don't have to go to court in advance if you don't want to. You would just have the option, to cover yourself in-case someone sued you down the road when your product hit the big time, The point is here that if someone objects, they have to clearly and specifically outline why ( you can't just say this infringes 256 patents without specifying which ones ). You'd also have the option, if you felt you were reasonably safe in todays situation to just carry on without such a cert.

I suspect lawyers will actually hate it, since it would reduce the amount of work they get. There would be low stakes at these hearings, and therefore not a lot to fight about. If Apple and Samsung had engaged in such a process, Samsung could have simply made their phone look different, which supposedly infringing on Apples rights.

I don't know yet who would pay all the legal costs. But amount-wise, since they'd be significantly cheaper than a full-blown trial, the costs would be negligible compared to costs in todays system.

This wouldn't be a licence - you can start trading whenever you want. You might only choose to secure such a cert when a third party starts trying to intimidate you. It would significantly reduce the risk in starting a smaller business, and would allow them to thrive.

The process, but not the product would be similar to a patent. While patents ( particularly in modern day IT ) are used to intimidate or control others, this certificate would merely prevent others from intimidating and controlling you.

You have a huge misunderstanding about the law. The protection of IP will always be a big deal, companies are paying billions to buy IP and will pay millions to protect it. Just because a company is starting off does not mean the company who believe they hold the IP is only starting out. By going down the very route you envisage will slow down time to market and involve litigation that may not be necessary, that may only give partial protection in some countries.

Cases like Apple v Samsung are in fact rare, most companies pay fees to use other companies tech, in one little chip multiple companies could be getting a cut of the price. IP law is one of the most complicated areas of law in the world, as many are now seeing.

Rather than lawyers not wanting it they would love it, loads more business. Who pays the costs is vital, why should I pay to protect my IP in multiple cases around the world looking for certs, when in each case I win and the cert is not granted, a legitimate company with real IP could go broke defending these cert applications. Will the losing side pay. That's why the current system actually works if I infringe someone's IP but my product tanks then usually no harm and no damages. If on the other hand my product is a success then I have the money to either agree a royalty payment or fight the case.

RBX

ResearchWill wrote: »

Rather than lawyers not wanting it they would love it, loads more business. Who pays the costs is vital, why should I pay to protect my IP in multiple cases around the world looking for certs, when in each case I win and the cert is not granted, a legitimate company with real IP could go broke defending these cert applications.

You don't have to defend these cert applications. The cert doesn't prevent you from competing with the company who holds the cert. It just means that if you do litigate against them after their product becomes a success, you can only claim damages for future infringment, rather than past infringement.

Will the losing side pay. That's why the current system actually works if I infringe someone's IP but my product tanks then usually no harm and no damages. If on the other hand my product is a success then I have the money to either agree a royalty payment or fight the case.

By the same token, you could let them get their certificate, and fight the case later. The crux of the issue here is that you would only be able to claim royalties for future infringements, rather than past ones ( while the certificate was valid ), while you were hiding your submarine patents.

There are products ( eg WebM ) where royalties are impractical, and there is a clear benefit from legal protection for the codec to allow it to exist without the current FUD that H264 patent holders are spouting.

ResearchWill

RBX wrote: »

You don't have to defend these cert applications. The cert doesn't prevent you from competing with the company who holds the cert. It just means that if you do litigate against them after their product becomes a success, you can only claim damages for future infringment, rather than past infringement.



By the same token, you could let them get their certificate, and fight the case later. The crux of the issue here is that you would only be able to claim royalties for future infringements, rather than past ones ( while the certificate was valid ), while you were hiding your submarine patents.

There are products ( eg WebM ) where royalties are impractical, and there is a clear benefit from legal protection for the codec to allow it to exist without the current FUD that H264 patent holders are spouting.

So your system only protects the company from the granting of the cert to when the other company decides to protect its IP. How does that solve anything it adding a layer to the system that is already there. It would also in Ireland at least fail under our constitution as I would think is an unjust attack on property rights as it allows the state to provide protection to one person who it is later found infringed another's rights.

To grant this cert without any person who has a possible claim being involved in the case would be stupid.

I also don't see how your system helps in your Webm example if the protection only lasts until the other side start proceedings.

If I follow you logic I can invent a phone and call it an orange and you know what it looks and acts like a iPhone. So I get a cert Apple ignore me and I start production and sell 10000000. This cause apple concern and they estimate they have lost 100000000 euro. So they fight me and win but because of the cert can't claim damages. So why won't they fight each cert application. Also you are creating the reverse patent troll.

johnnyskeleton

RBX wrote: »

I don't think that would be fundamentally different from the current situation, other than that the little guy couldn't sit back wait until his IP became mainstream, and then pounce on the victim who had unwittingly been distributing his IP for years.

The little guy could get the certificate of legitimacy revoked through a court hearing, but could only claim damages for violations having taken place a reasonable time after the certificate was revoked.

Scenario:
Alpha Ltd secures some obscure patent.
Bravo Ltd, launch a technology which unwittingly infringes on Alpha Ltd's patent.
5 years later Alpha notices this infringement and sues.

Now the fork:
If Bravo Ltd had one of the Legit Certs I'm proposing, Alpha could sue, have the cert revoked ( To do so they'd have to clearly state what aspects of the situation were illegal and why ), and claim damages for any infringements in years 6, 7, 8 etc.

If Bravo didn't have a Legit Cert, as is the current situation, Alpha could simply wait another few years, and sue for multiple years of unwitting infringement.





The idea is that because applying for a Legit Cert would take place before a major investment, that the stakes wouldn't be as high at that point, and therefore that would be cheaper litigation, than damages litigation later on where each party has more to lose. Essentially there wouldn't be as much to fight about.


Agreed, but that limits, rather than eliminates the value of such a system. In some cases protection in one jurisdiction would be enough, particularly if an entity was only operating in that juristiction. Boards.ie itself would be an example of where such a service would be useful. Lets say hypothetically some company threatened boards.ie with libel. I'm not sure if I'm allowed to cite the case ( it was banned at one point ), but I'm sure you know which one I'm talking about.

I was unaware of that - I thought you had to be sued first. I will look into the cases you cite.


Having a legit cert with the properties described above, even if only in the US and Germany, would significantly reduce your exposure to damages.

Your original point was that there is legal uncertainty and that greater resources could be used to bully out smaller firms. Legal uncertainty is a problem where a person is correct but is not 100% certain that they will successfully defend a claim. Using greater resources usually means out-litigating people. These problems are essentially the difficulty caused by the fact that a larger entity can sue a smaller entity not because they are right, but because they can.

The problem you identify now is completely different. It is not a problem of legal uncertainty nor of greater resources, but a problem that a person can delay kicking off proceedings to increase an award of damages. But there are a few very important points you are missing:

1) an award of damages is usually compensatory i.e. to make good the loss suffered. It is not a windfall nor (in most cases) a punishment;

2) while Bravo may have to pay 5 years worth of damages, they have also had 5 years of unfairly using someone else's idea to make profits;

3) if Bravo were unaware of the patent that is their own fault for not properly researching the area. Instead of looking for some crazy certificate of legitimacy (which doesn't deal with copyrights at all) they will in the real world hire a patents attorney to ensure that there are no competiting patents and that they can properly patent their item. This is cheaper and easier than going to court.

4) similarly, if Alpha were aware of the infringement but did nothing about it for 5 years this can be used against them in court to reduce the sum of damages.

So you see the system works as is, as long as everyone is careful to ensure, by means of appropriate legal checks, that what they are doing is correct, then no problem will arise that is without recourse (e.g. suing the lawyer for not spotting the other patent etc). There is no reason to have an elaborate, technical and hypothetical court case for every new product, and no reason why the state should pay for this when private individuals and companies should properly look after their own affairs.

johnnyskeleton

RBX wrote: »

I suspect lawyers will actually hate it, since it would reduce the amount of work they get. There would be low stakes at these hearings, and therefore not a lot to fight about. If Apple and Samsung had engaged in such a process, Samsung could have simply made their phone look different, which supposedly infringing on Apples rights.

I don't know yet who would pay all the legal costs. But amount-wise, since they'd be significantly cheaper than a full-blown trial, the costs would be negligible compared to costs in todays system.

Why would they be cheaper than a "full blown trial" when they are, in effect, a "full blown trial" on the hypothetical. In fact, more issues will arise in order to future proof a product against any possible legal challenge than there would be in a dispute among parties. Moreover, why would solicitors charge any less for their time on these things. They could easily be fully contested, protracted and complex.

Lawyers would love such a move. It would mean a load of extra new work and as you accept that legal disputes can still arise later, there would not be a significant decrease in the amount of commerical litigation. Moreover, companies would not be able to sort out any dispute outside of court if there is a court order in place, so even the latter category of work for lawyers would be increased as companies could no longer sort out their problems without going to court.

johnnyskeleton

RBX wrote: »

You don't have to defend these cert applications. The cert doesn't prevent you from competing with the company who holds the cert. It just means that if you do litigate against them after their product becomes a success, you can only claim damages for future infringment, rather than past infringement.

By the same token, you could let them get their certificate, and fight the case later. The crux of the issue here is that you would only be able to claim royalties for future infringements, rather than past ones ( while the certificate was valid ), while you were hiding your submarine patents.

What company in the real world would knowingly allow copyright infringement of their IP and only sue when it became a success? If they did that, a judge could easily direct that no damages be payable for the period in which they acquiesced in the infringement and start damages only from the date on which they notified the other company of the problem.

jblack

This threads seems to have exclusively gone down the IP route.

I would imagine a massive reluctance for companies to discuss aspects of their I.P. and technology in early course of development with other parties, be that the courts, an arbitrator or other competitors.

RBX

ResearchWill wrote: »

So your system only protects the company from the granting of the cert to when the other company decides to protect its IP. How does that solve anything

By obligating rightsholders to disclose their ownership of the IP, instead of keeping it hidden spouting FUD.

It would also in Ireland at least fail under our constitution as I would think is an unjust attack on property rights as it allows the state to provide protection to one person who it is later found infringed another's rights.

Possibly. That means to implement it would require a referendum.

To grant this cert without any person who has a possible claim being involved in the case would be stupid.

In principle I agree, but I'd lower the bar from possible to reasonably likely. Similar to the difference between absolute doubt to reasonable doubt.

I also don't see how your system helps in your Webm example if the protection only lasts until the other side start proceedings.

I think the WebM case is the perfect proponent for such a system. WebM is widely known. Google ( presumably ) have done everything they can to ensure, and have a good faith belief that they're not infringing anyones patents. There may well be obscure patent holders out there biding their time, waiting until WebM becomes popular so that they can cash in for the multiple years that they let WebM grow in popularity, keeping their IP secret.

At whatever point this party does disclose their obscure patent, Google ( and anyone else who uses WebM ), can either licence WebM for future use or remove the infringing features from the WebM standard.

If I follow you logic I can invent a phone and call it an orange and you know what it looks and acts like a iPhone. So I get a cert Apple ignore me and I start production and sell 10 million. This cause apple concern and they estimate they have lost 100 million euro. So they fight me and win but because of the cert can't claim damages.

[ clarified quote by changing 000000 to million ]
Correct - they can't claim damages for the period while they were ignoring the competitor and not disclosing their rights / interests.

So why won't they fight each cert application. Also you are creating the reverse patent troll.

Are frivolous lawsuits illegal here? If so then the same laws would apply to contesting a legit cert. Otherwise they wouldn't fight every cert application because they wouldn't win them all and fighting frivilous cases would cost them time, energy, and money.

I'm not sure what you mean by a reverse patent troll. Are they a bad thing?

ResearchWill

RBX wrote: »

By obligating rightsholders to disclose their ownership of the IP, instead of keeping it hidden spouting FUD.


Possibly. That means to implement it would require a referendum.


In principle I agree, but I'd lower the bar from possible to reasonably likely. Similar to the difference between absolute doubt to reasonable doubt.


I think the WebM case is the perfect proponent for such a system. WebM is widely known. Google ( presumably ) have done everything they can to ensure, and have a good faith belief that they're not infringing anyones patents. There may well be obscure patent holders out there biding their time, waiting until WebM becomes popular so that they can cash in for the multiple years that they let WebM grow in popularity, keeping their IP secret.

At whatever point this party does disclose their obscure patent, Google ( and anyone else who uses WebM ), can either licence WebM for future use or remove the infringing features from the WebM standard.


[ clarified quote by changing 000000 to million ]
Correct - they can't claim damages for the period while they were ignoring the competitor and not disclosing their rights / interests.


Are frivolous lawsuits illegal here? If so then the same laws would apply to contesting a legit cert. Otherwise they wouldn't fight every cert application because they wouldn't win them all and fighting frivilous cases would cost them time, energy, and money.

I'm not sure what you mean by a reverse patent troll. Are they a bad thing?

To deal with your last one first I am not aware of any block on frivolous lawsuites, except by way of an Issac Wonder Order. So everyone is entitled to protect their position.

A reverse patent troll, would be a person who has no IP rights but takes action you propose in order to force companies to either fight or buy them off.

In any action for damages if a company sits on its hands and does not take action on property rights it may have that will be used against it in any award for damages.

You cant keep IP secret, all IP protection is public, one of the problems is the amount of Patents out there and having to troll through them to see if what you are doing does in fact infringe someone elses rights. If a person who holds some patent does not act they may lose their right to take action after a certain time.

IRLConor

ResearchWill wrote: »

one of the problems is the amount of Patents out there and having to troll through them to see if what you are doing does in fact infringe someone elses rights.

That's entirely impossible, even if you're an enormous company. It's also not worth doing, since I'm pretty certain that every piece of software written in the world today contains patent infringing portions.*

It's not just a problem of patent trolls, big/otherwise respectable companies use patents as weapons too. It's not new either IBM threatened Sun with their entire patent portfolio back in the 1980s. Brazen shakedowns happen all the time.

I suspect that the solution to the OP's issue - at least in the arena of software IP - is either:

1. Invalidate all software patents and forbid the issuing of new ones. (This is my preference FWIW.)
   
   OR
   
   
2. Attach a massive punishment to suing using any patent which should not have been granted in the first place. Put the burden on the patent holder to ensure that the patent is a legitimate one, i.e. that it was novel, involved an inventive step, etc at the point of application.

* This patent for example covered the vast majority of software ever written. There is a substantial amount of obvious prior art but it was granted anyway.

jblack

IRLConor wrote: »

That's entirely impossible, even if you're an enormous company. It's also not worth doing, since I'm pretty certain that every piece of software written in the world today contains patent infringing portions.*



* This patent for example covered the vast majority of software ever written. There is a substantial amount of obvious prior art but it was granted anyway.

Most software is not patentable - see s.9(3) Patent Act, 1992.

Note the law in the US is different and permits software patents.

In Europe the basic protection for computer software in under copyright law.

ResearchWill

IRLConor wrote: »

That's entirely impossible, even if you're an enormous company. It's also not worth doing, since I'm pretty certain that every piece of software written in the world today contains patent infringing portions.*

It's not just a problem of patent trolls, big/otherwise respectable companies use patents as weapons too. It's not new either IBM threatened Sun with their entire patent portfolio back in the 1980s. Brazen shakedowns happen all the time.

I suspect that the solution to the OP's issue - at least in the arena of software IP - is either:

1. Invalidate all software patents and forbid the issuing of new ones. (This is my preference FWIW.)
   
   OR
   
   
2. Attach a massive punishment to suing using any patent which should not have been granted in the first place. Put the burden on the patent holder to ensure that the patent is a legitimate one, i.e. that it was novel, involved an inventive step, etc at the point of application.

* This patent for example covered the vast majority of software ever written. There is a substantial amount of obvious prior art but it was granted anyway.

I agree that IP law has been abused, I am in no doubt that as an international area of law it needs reform. I just don't think the OP's solution would in any way work.

RBX

jblack wrote: »

This threads seems to have exclusively gone down the IP route.

Yeah; it wasn't meant to, but IP seemed to make for the best examples.

I agree that IP law has been abused, I am in no doubt that as an international area of law it needs reform. I just don't think the OP's solution would in any way work.

I've a different solution for Patent specific issues, but they'd be OT on this thread.

Other non-IP-related examples, would be a certificate that if you operate an online forum, with members, that the member him/herself is responsible for defamation and not the service provider. Such a certificate would make it more difficult for bullies to intimidate.

Another example again, would be a tax system - don't know of any Irish examples, but in the UK there's the likes of Breeze or Choice Premier. In those cases, not only are the HMRC ( these are UK companies ) not obligated to act immediately, but they can also add on interest and penalties by sitting and waiting for more unpaid tax to build up.

I'm getting the subtle hint, that there are people who don't think a lot of this idea. Let me ask you this; Besides this, how do you stop people from profiteering by concealing illegal action for a period of time, until they can build up a sufficient damages case?

IRLConor

jblack wrote: »

Most software is not patentable - see s.9(3) Patent Act, 1992.

Note the law in the US is different and permits software patents.

In Europe the basic protection for computer software in under copyright law.

I'm aware that in Ireland and the EU the software patent landscape is much better. I was speaking in a more general sense.

That said, the EPO does grant software patents. Here is one for example. The Patents Act 1992 is an implementation of the European Patent Convention as far as I can tell, and to the best of my knowledge patents issued by the EPO are enforceable here.

RBX

ResearchWill wrote: »

In any action for damages if a company sits on its hands and does not take action on property rights it may have that will be used against it in any award for damages.

In some cases yes, in other cases no.

I don't believe tax authorities for example are obligated to take prompt action.

You cant keep IP secret, all IP protection is public, one of the problems is the amount of Patents out there and having to troll through them to see if what you are doing does in fact infringe someone elses rights. If a person who holds some patent does not act they may lose their right to take action after a certain time.

Incorrect. Microsoft for example routinely claim that Linux infringes on 200+ of its patents, but refuse to coment on how, or which patents. Also the way patents are written makes it impractical for just about everyone ( even google ) to check if their stuff infringes on others patents.

ResearchWill

RBX wrote: »

Yeah; it wasn't meant to, but IP seemed to make for the best examples.



I've a different solution for Patent specific issues, but they'd be OT on this thread.

Other non-IP-related examples, would be a certificate that if you operate an online forum, with members, that the member him/herself is responsible for defamation and not the service provider. Such a certificate would make it more difficult for bullies to intimidate.

Another example again, would be a tax system - don't know of any Irish examples, but in the UK there's the likes of Breeze or Choice Premier. In those cases, not only are the HMRC ( these are UK companies ) not obligated to act immediately, but they can also add on interest and penalties by sitting and waiting for more unpaid tax to build up.

I'm getting the subtle hint, that there are people who don't think a lot of this idea. Let me ask you this; Besides this, how do you stop people from profiteering by concealing illegal action for a period of time, until they can build up a sufficient damages case?

As has all ready been said if it is show that the owner of the IP waited to build up damages, courts have full power to take that into account. I'm asking can you show that this is a really serious problem.

A couple of years ago it was all about the copyright and patent trolls, if I remember correctly most of those guys came off worst when the courts got involved.

By and large most companies agree a royaliry payment scheme and life goes on.

In relation to defamation law, I can not see how your cert system would work. Again as in the recent case of person not paying taxi fare, it's risky to sue online forums.

ResearchWill

RBX wrote: »

In some cases yes, in other cases no.

I don't believe tax authorities for example are obligated to take prompt action.



Incorrect. Microsoft for example routinely claim that Linux infringes on 200+ of its patents, but refuse to coment on how, or which patents. Also the way patents are written makes it impractical for just about everyone ( even google ) to check if their stuff infringes on others patents.

To sue for patent infringement I assume the statute of limitations applies, in Ireland it's six years.

Tax have usually longer periods to sue, and what the revenue have to do with this I do not know, unless you are saying I can get a cert from court to say I am tax compliant. Can you also point to any case where revenue knowing of an underpayment sat back and waited to sue.

So Microsoft says its patents are being infringed, unless they sue it means nothing, the fact they don't sue says a lot. There is nothing stoping me if Microsoft say hang on your product infringes our IP, to go to court and get a declaration that I am not in fact infringing IP rights of another.

Procrastastudy

RBX wrote: »

Other non-IP-related examples, would be a certificate that if you operate an online forum, with members, that the member him/herself is responsible for defamation and not the service provider. Such a certificate would make it more difficult for bullies to intimidate.

Is that not the defence of innocent publication?

I really think defamation law and the ability to obtain an interlocutory injunction is robust enough.

jblack

Procrastastudy wrote: »

I really think defamation law and the ability to obtain an interlocutory injunction is robust enough.

I would agree with that.

blueythebear

I think this idea is not a runner at all. As has already been said, some (but not all) of the criticisms of the Article 26 procedure are relevant here to a degree. For example constitutional challenges often arise because a set of circumstances occur that were not envisaged when initially drafting the legislation in question. This is going to occur in this idea / scenario.

There is literally no point in pre-litigating on hypothetical issues. It's a waste of money for everyone (except for lawyers) and provides no certainty as to whether a particular idea is legal in all circumstances.

Court lists are incredibly busy as it is without adding to the burden.