[Mono-list] Uncertainty and Doubt about MONO

[Jonathan Pryor]

On Sat, 2006-11-04 at 20:26 -0600, R. Tyler Ballance wrote:
> Forgive me for being naive, but regardless of the IP status of Mono,
> or any of the Novell products, how on earth does the legality of their
> product come under the realm of my responsibility, to where I can be
> held liable for using their products, notably, Mono?

Isn't patent law fun? :-)

The short version is this: it doesn't matter *who* infringes a patent,
as long as it's infringed and the infringing patent is being used.

Take the recent JPEG patent as an example.  Nothing actually would stop
the patent holder from suing you, me, and Joe Schmoe for infringing the
patent, as long as they actually wanted to sue us.  That of course is
what prevents them from suing everyone -- we're (comparatively) poor, so
the legal fees of suing us would probably be larger than what they could
actually get from us.

Consequently, most lawsuits target "big fish," because they have more
money, thus making for a better return on the lawsuit "investment," and
typically the settlement of the "big fish" lawsuit protects the
customers of the "big fish."  Note that the customers weren't protected
before the contract/settlement between the patent holder and "big fish".

A real-life example of this is the Timeline lawsuit mentioned in my
blog.  In it, Microsoft SQL Server could be used by Microsoft's
customers to infringe a patent held by Timeline, and Timeline stated
that they could sue Microsoft's customers if the customer infringed the
patent.  (Which is why they were suing Microsoft, to get Microsoft to
protect Microsoft's customers, as Microsoft would likely give Timeline
more money than suing all of Microsoft's customers in individual
lawsuits would provide...)

> Say I'm implementing a completely cross-platform solution that uses
> the .NET runtime on the Windows platform, and the Mono runtime
> everywhere else, if there is any liable intellectual property in the
> Mono runtime, how on earth am I (as a customer of Novell, and someone
> who merely uses the Mono runtime) in any legal danger?

If the patent is infringed and you're infringing it (even indirectly),
you're in (potential) legal danger.  Period.

Again, generally you're _not_ in legal danger because you have less
money than Novell, so Novell is more likely to receive a lawsuit than
you are, but this is only an economic reason, not a legal one.  You are
still a potential target.

To flip this around, suppose Wal-Mart were using patent-infringing
software (chosen because I'm reasonably sure they're larger than
Novell).  In this case, it would make more sense for a patent holder to
sue Wal-Mart, as they could (potentially) get more money from Wal-Mart
than from Novell.

> To use to a physical metaphor, say I buy these special receding screws
> from MiguelCo Construction Supplies, and I build numerous
> houses/buildings with said receding screws (since MiguelCo's receding
> screws are cheaper, and work with more types of material), if further
> down the line its discovered that MiguelCo's receding screws are
> really a take-off on GatesCorp's design (which are far more expensive,
> and only work in redwood indigenous to the pacific northwest),
> legally, how can I even be included in any sort of litigation?

Say it again: Patent law is fun!

:-(

If GatesCorp had something personally against you, they could sue you,
and MiguelCo couldn't stop it.  The only way MiguelCo would get involved
is if you had a contract stipulating that they would protect you if
MiguelCo's product was the target of a lawsuit.

Which is basically a patent protection umbrella, which (suprise!) Novell
and many others introduced in 2003/2004 when SCO brought the issue up.

So you can get this additional patent protection, but only if MiguelCo
offers it.  If they don't, you're on your own.  This also requires that
you have a *contract* with MiguelCo stipulating this -- MiguelCo can't
protect SomeRandomCompany that they have no business relationship with,
even if they'd otherwise really like to do so.

> All I did was build something that uses legitimate (to the best of my
> knowledge) tools and materials? Predict doom as much as you want about
> a Novell/Microsoft partnership, but how does their IP somehow damn my
> products that base off of theirs?

Say it with me: Patent Law is Fun!

 - Jon

P.S. I am not a lawyer, but I've paid far too much attention to patents
than is healthy.

P.P.S.  I'm going to go off and cry now.  Software Patents really are
insane...