Correct. As my experience with the USPTO, nearly 90-99% of all patent applications that are ulitmately issued receive one or more "non-final" rejections. The rejection could be even due to a typo or a "bad drawing".
In the present situation, the patent is being re-examed due to new "prior art" being brought forward for which it is believe to be not merely cumulative of the prior art reviewed when when patent was originally issued.
As this is a "non-final" rejection (as all of the other four rejections were" this story is really a non-story in my opinion.
Even under treaty, a U.S. Patent only covers the U.S. Treaties simply allow patents to be filed in other countries that are based on a patent filed in a WIPO member country. For example, I file a patent in the U.S. I can then file a "copy" patent in Canada or another WIPO member country (pretty much ALL countries) within 18 months and get the same "priority date" or date of filing in the WIPO member country as I did in the U.S.
The article stated that this was a "non-final" rejection. In my personal experience nearly 95-99% of all patent applications that ultimately issue receive at least one "non-final" rejection. This story is, well, a non-story.
Correct, the State Street decision confirmed that "everything under the sun" (with the exception of natural phenomenom and mere forumulas) can be patented, including methods of doing business. Of course lower courts for years had been saying that business methods couldn't be patents and arguably so did the Federal Circuit. However, the State Street opinion simply said "we've never said such a thing" and stated they were patentable.
Prior to the case the U.S. Patent Office (USPTO) had rejected such patents as they were covering patentable subject matter. Most patent attorneys/agents simply including a computerized step of some nature or another that were "novel" and "nonobvious" to get around this objection. However State Street Bank's attorney sued and won. And now whether a computer or person performs the steps, it doesn't seem to matter to the courts.
"The key to the case is that IBM specifically negotiated with SCO a clause that permitted it to use the same programmers who saw the Unix code to make competing products. This was documented as part of a transaction in which SCO was paid lots of money. SCO conveniently left that clause out of its explanation of the facts. But in the long run, it will not be able to hide from that concession.
The result is, absent literal copying of meaningful amounts of Unix into Linux, SCO has no case. None. Nada. Zilch."
While this likely destroys SCO's trade secret case, I have to disagree that it necessarily destroys SCO's copyright infringement case. Copying may have occurred here. Remember, under copyright law it does not need to be a direct, word-for-word copying, but if the "infringing" work utilizes a derivative of the copyrighted material then there is likely infringement. I'd assume this is the issue where the judge is not yet convinced that a reasonable jury could not find that copying did not occur. At least not yet.
You're right that the judge decides questions of law and juries decides questions of fact, however if a judge finds that "no reasonable jury" could find other than to a certain conclusion that judge may enter a summary (or directed if at the time of trial) verdict for one party or another. Additionally, there may be several questions of fact before the court and the judge may issue partial summary judgements on one or more of those issues. Apparently the judge here isn't at that point.
I need to correct one point. The USPTO correctly scanned the 19 pages in, I just didn't find the next page button at the top. As shown on page 4 the patent has been reject for not being non-obvious (yes, I realize that's a double negative but that is the law.)
The examiner found that combining U.S. Pat Nos. 5,305,494 and 5,367,671. Of course while both the '494 and '671 patents were filed more than a year before M$'s patent, they were issued after the filing date of application to which M$ relates.
So if M$ had invented their concept before the earliest filing date of a related application, they could "swear behind it" (i.e. state in an affidavit that the invented the idea before the reference's filing date) and the rejections would no longer stand.
Alternatively, M$'s attorneys could 1.) state why the examiner's argument "doesn't hold water" (or for our southern's "that dog don't hunt") or 2.) amend the claims to avoid the references or 3) do both.
Here's the story. The patent is in a "Re-examination." On Sept. 16th the USPTO issued it's first non-final action in relation to this re-exam. While, it looks like the scanned dept of the USPTO messed up and only included the first page of the nineteen total pages so one can't review the sites or if it's a 102 (novel) or a 103 (non-obvious) rejection, I can tell you was a patent attorney that 99% of the time you receive a first action non-final rejection.
It is almost like the examiner feels the need to "paper the file." What will happen next is that M$'s attorneys will respond to the action stating reasons the examiner is off of thier rocker (respectively of course). The examiner will either cave and allow some or all of the claims, do another search and issue yet another non-final action, or issued a final rejection.
Now, if a final rejection is issued, it's not exactly final. M$'s attorneys will then file amendments after final, have a conference with the examiner and/or file an appeal to the USPTO Patent Board of Appeals. If THEY find for the examiner then M$ could file suit in federal court in D.C. If they find for M$ then the examiner may allow the case or simply do another search and find yet another reason to reject the patent application.
In other words, this is just the start of a very long and boring saga.
First a patent is afforded an assumption of validity, including the assumption that the invention is nonobvious.
Second, the question of nonobviousness is presented to a jury, most likely mainly made up of people that have only used AOL and have NEVER done anything remotely similar to programming.
Third, an obviousness or 103 rejection, requires the pieces of prior art that teach or suggestion that these pieces should be combined AND in their combination, each and every element of the invention is present. Remember prior art is typically printed publication (non-printed publications can be presented in court, but the USPTO won't use them in a Reexam procedure).
So, a clearly invalidating piece of written prior art is a "sure thing" compared to making the obviousness arguement, which is a crap shoot at best.
Another thing to remember is that a piece of prior art can help invalidate the patent on Summary judgement, while obviousness will typically require a trial. The difference in cost being hundreds of thousands of dollars.
But I will GUARANTEE you that they will argue obviousness, as well as non-infringement, and inequitable conduct. After all each argument means more billables!;)
Lavrynov Seems To Be Lying About Having a Patent
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It is possible that he filed a registration patent in Russia. However a registration patent is filed essentially as a copyright would be, when you file what amounts to be an invention disclosure. This simply provide one "proof" that the purported "invention" existes as of the date filed.
If one wishes to "enforce" a registration patent, one must prove in court, during litigation, that the registration should be accorded legal rights.
It's unfortunate that news sources don't take the time to research stuff like this.
After reading the attorney's article in ZDNet, while I enjoyed it, I have to make a couple comments as he's simply missing the point on one point he made and outright wrong on another point.
First, on point two he states:
2. SCO has a duty to mitigate damages. Any plaintiff complaining that it is being injured by wrongful conduct has a duty to mitigate its damages. In order for SCO to assert claims against Linux users, it has to take reasonable steps to lessen the harm that it is suffering. This means giving Linux users the opportunity to remove the infringing code from Linux. SCO's refusal to identify the Linux code in question is hard to defend. SCO says that it can't do so, because it would be akin to showing a thief his fingerprints so that he can clean them off. But that makes no sense. The "fingerprints" are available in many forms, and can be traced electronically. Keeping the Linux community guessing about the code seems more tailored to running up the damages than preserving evidence.
While it is most assuredly true that parties in a contract have a duty to mitigate their damages, that mitigation duty hasn't been applied as far as I can tell to copyright infringement. And even if it is applied to copyright issues, the duty to mitigate only goes to the question of the amount of damages sustained by the plaintiff, not to if the defendant is infringing.
Second, in point four he stated that:
4. SCO may have set a ceiling on recovery. SCO has already announced a licensing program with specific license rates. In the worst case, and unless and until SCO makes a much clearer and more public case that its code has been stolen, SCO is not likely to recover from individual users more than it has announced its license fees to be. Why pay now when you can pay later or quite possibly not at all?
First, it is clear that SCO is offer a per seat license at 50% and will increase after a certain date (Oct. 15>) Second, statutory damage amounts are provided by law to those who have a registered copyrighted work infringed. This amount is above any "ceiling" that Mr. Carey may mistakenly assert that exists.
Finally, Mr. Carey is right. If SCO's claims are without merit, then they have placed themselves at a huge risk of a substantial judgment against them. Of all our sakes, I hope that this is the case.
Said he ruled on the damage award (reducing them) and on the exemplary (trebel) damages (denying them). Didn't say if he was carrying over or not the JMOV that the defense surely put forward. Not unusual. Often settlements come around at this time frame do to the cost and uncertainty of an appeal.
If they failed to show that there would be irreparable harm from future use than how did they show that there was harm from prior use? I guess they don't need to prove any harm, they just need to show they own the patent and they get a huge sum of money. Wired's article says that both sides plan to appeal, maybe ebay can get a better deal in this process.
Irreparable harm does not equal harm.
Irreparable harm means that the party can't be reasonably compesated with money. In this case the judge found that the patent holder can be compensated and that eBay has the cash to do it.
Actually, if a company doesn't find that their aspect is "patentable" they can file a statutory invention registration under 35 USC 157.
Also, if a company can show that their "aspect" has been made public for more than a year before the filing of the putative patent application, then the patent will be invalidated.
Finally, considering all of eBay's financial wherewithall, it's pretty clear that their isn't any evidence that this process was out their prior to the patenting of the invention.
Remember, in the US, the patent right goes first to those who invent the process/apparatus, not to those who file first, as in most other countries. So, if anything, this protects the "small man" that didn't have the money to hire a patent attorney immediately, or pay the fee to expedite it.
Finally, as you seem to have a dislike for big business, doesn't this case show that the little guy can still win?
1.) Reduced the jury award from $35 million to $29.5 million. Not a LOT, but a few million here, and a few million there, you're soon talking REAL money.
2.) Did NOT make the case "special" even though the jury found that eBay was a "willful infringer." The judge COULD HAVE tripled the award AND added attorney fees.
3.) Ruled that eBay could STILL maintain their "infringing ways" even though patent law clearly provides that a patent holder has the right to excluded others from practicing their invention. Of course, the reports could have failed to notice that eBay was required to post a bond pending appeal and that that's the reason they can keep "infringing" the patent, at least until the Federal Circuit rules on this in a year or two.
These facts lead one to believe that the judge didn't agree with the jury in this case. While it most certainly will be appealed, I still wonder if the judge is concidering overturning the jury verdict, not withstanding the verdict.
So, while the posted comment seems to make it look like the judge is "going after eBay" and this now has some "finality" it actually appears to be quite the opposite.
And as to it being "stupid" to patent this? I can site 29.5 million reasons it wasn't for the inventor to patent it.;)
Oh, so to answer your specific question, find the bankruptcy ruling showing the disposal of the assets. It should be in the Federal Bankruptcy court where the bankruptcy was filed (normally where the action was filed). You'll be MUCH better off showing up (WELL BEFORE CLOSING TIME OR BEFORE LUNCH) and being really nice to the clerks. They typically are VERY helpful, unless you're an ass to them. Which why most clerks don't help attorneys.
Copyrights for Software Code are considered property and must be distributed if Chapter 11 occurs without a full asset purchase by another company.
The court appointed bankruptcy administrator will take "control" of the assest and do the best to ensure payment to the creditor (with certain classes of creditors taking what was owed them prior to others). Anyway, as this code is an asset it will be liquidated along with the other assets.
For example, the administrator may place the software rights up for auction and the highest bidder will take their rights. Or if a creditor has placed a lien on the registration rights, the rights may go to the creditor. However, one would likely argue that if the value of the registration exceeds the value of the debt for which the lien pertains, the rights should be sold and the creditor only takes the value of the debt.
So, even if SCO goes belly up, the registration rights (especially ones SO visible) will be still around.
Wouldn't surprise me if Solaia and/or the Niro firm bought the rights. See my journal entry of Tuesday July 22 if you want more detail on that.
Come on, if you filed a copyright registration for Windows 2000, we'd all be able to confirm you're a loon.
However, as SCO places themselve immediatately at risk of a suitby filing a registration and asserting their rights. Additionally, they do seem to have a legitimate claim to the code for which they registered (which was NOT Linux one must remember so your analogy of filing a registration on Windows 2000 isn't even close). Furthermore, as they actually HAVE equity and aren't judgment proof, as many on here are, then you should take them more seriously.
Finally, while you seem to think companies will do the "decent thing" by "point[ing] out the area of infringement" one simply doesn't. It's the nature of the beast. Of course, now that a suit has been filed, discovery will follow and we(or at least the parties in the suit) will know what's what.
Patience my young Padiwan. Rush not into area we see not well.
Nice example, but the problem is not akin to the present situation. These foreign countries (actually, the ones I get are from companies in foreign countries that have no real standing, typically ones that have notice we have filed a US trademark or patent and want to "help" us with foreign rights) have no possible credible basis. However, with SCO, they may. They have filed a copyright registration, now possibly subjecting users of LINUX to escalated statutory damages AS WELL AS attorney fees. They aren't going to go after the "small game" but the Fortune 500 types, so I'm not going to put my company into unnecessary risk.
Hey, I sure hope there ARE a queue or plethora of developers to rewrite the "infringing code" (if any exists). But the fact is, if we have used code that we have been "put on notice" that infringes, at any time then my company may be liable for statutory damages (as SCO has received a registration). These damages aren't something to ignore. If my company is running only 100 LINUX boxes, and we fail to take a license, and are found to infringe, the damages may exceed $500,000 (plus attorney fees).
That is a getting to be "real money" for "free software."
Therefore, as stated, the prudent course is to hold off on additional implimentation (where reasonably possible); understand the risk better at your company (it's harder than running a simple script when you have tens of thousands of computers, and a multitude of locations behind various firewalls depending on the required security levels of the machines); and then, if you have a significant current risk or need (i.e. have or need a substantial number of LINUX boxes) you can impliment a detailed analysis of the validity of the copyright claim. However, if you are only running or needing a handful of boxes, the cost of such an analysis is counterproductive and the CHEAPEST course may be implimenting other software.
Of course you can simply roll the dice with the companies risk. It worked so well at Enron.
You're encouraging me to adopt "free" software that may end up costing the company $500-$700 a seat (at best) or $5000 a seat if we are found to be infringers.
Who's not acting reasonably?
All I am recommending to my company is to hold of on implimenting software for which we cannot reasonably predict the cost. This is, right now, the "great unknown." While it certainly appears that this won't hold up, we need to step back, evaluate what the costs, risks, and benefits are before we continue down the path.
I fail to understand how it is a "disservice" to a company to evaluate software implimentantion on a cost/benefit analysis (including risk) PRIOR to implimentation.
Sure, it's always fun to shout "damn the torpedos" but if the benefit is negligible, I'll let some other company lead the battle, spend the money, while my company can sit back, watch and wait.
Granted, if it's determined that my company would lose considerable economic advantage NOT using LINUX, then we might take the risk. Until then, I'm going to keep the risks at a minimum. Remember, we're playing with real people, real money, and real stockholders. This isn't a SIM game.
I sure hope you don't work for my company. We'll be talking soon if you do. There's no reason to unreasonably subject a company to liability or additional liability regarding a clear risk. We simply don't know the risks associated with SCO's copyright registration. I, for one, will not allow my company to go blindly ahead. While I disagree with Gartner's first recommendation, I am recommending holding off on additional Linux installations/upgrades as well as ascertaining how many, if any, machines have the 2.4 Kernel (sounds like a disease now doesn't it.)
Go ahead and say "Torpedos be damned!" That course of action sure worked well with Lemelson! Only cost the average Fortune 500 company a million or so dollars!
Slashdot Mirror
Of course, these are merely PUBLISHED patents and are NOT enforceable patents unless they are ALLOWED and ISSUED.
Even in a reexam (which is not usual, but certainly not uncommon) a first action rejection is almost expected.
Correct. As my experience with the USPTO, nearly 90-99% of all patent applications that are ulitmately issued receive one or more "non-final" rejections. The rejection could be even due to a typo or a "bad drawing". In the present situation, the patent is being re-examed due to new "prior art" being brought forward for which it is believe to be not merely cumulative of the prior art reviewed when when patent was originally issued. As this is a "non-final" rejection (as all of the other four rejections were" this story is really a non-story in my opinion.
Even under treaty, a U.S. Patent only covers the U.S. Treaties simply allow patents to be filed in other countries that are based on a patent filed in a WIPO member country. For example, I file a patent in the U.S. I can then file a "copy" patent in Canada or another WIPO member country (pretty much ALL countries) within 18 months and get the same "priority date" or date of filing in the WIPO member country as I did in the U.S.
The article stated that this was a "non-final" rejection. In my personal experience nearly 95-99% of all patent applications that ultimately issue receive at least one "non-final" rejection. This story is, well, a non-story.
Correct, the State Street decision confirmed that "everything under the sun" (with the exception of natural phenomenom and mere forumulas) can be patented, including methods of doing business. Of course lower courts for years had been saying that business methods couldn't be patents and arguably so did the Federal Circuit. However, the State Street opinion simply said "we've never said such a thing" and stated they were patentable.
Prior to the case the U.S. Patent Office (USPTO) had rejected such patents as they were covering patentable subject matter. Most patent attorneys/agents simply including a computerized step of some nature or another that were "novel" and "nonobvious" to get around this objection. However State Street Bank's attorney sued and won. And now whether a computer or person performs the steps, it doesn't seem to matter to the courts.
While this likely destroys SCO's trade secret case, I have to disagree that it necessarily destroys SCO's copyright infringement case. Copying may have occurred here. Remember, under copyright law it does not need to be a direct, word-for-word copying, but if the "infringing" work utilizes a derivative of the copyrighted material then there is likely infringement. I'd assume this is the issue where the judge is not yet convinced that a reasonable jury could not find that copying did not occur. At least not yet.
You're right that the judge decides questions of law and juries decides questions of fact, however if a judge finds that "no reasonable jury" could find other than to a certain conclusion that judge may enter a summary (or directed if at the time of trial) verdict for one party or another. Additionally, there may be several questions of fact before the court and the judge may issue partial summary judgements on one or more of those issues. Apparently the judge here isn't at that point.
I need to correct one point. The USPTO correctly scanned the 19 pages in, I just didn't find the next page button at the top. As shown on page 4 the patent has been reject for not being non-obvious (yes, I realize that's a double negative but that is the law.)
The examiner found that combining U.S. Pat Nos. 5,305,494 and 5,367,671. Of course while both the '494 and '671 patents were filed more than a year before M$'s patent, they were issued after the filing date of application to which M$ relates.
So if M$ had invented their concept before the earliest filing date of a related application, they could "swear behind it" (i.e. state in an affidavit that the invented the idea before the reference's filing date) and the rejections would no longer stand.
Alternatively, M$'s attorneys could 1.) state why the examiner's argument "doesn't hold water" (or for our southern's "that dog don't hunt") or 2.) amend the claims to avoid the references or 3) do both.
Here's the story. The patent is in a "Re-examination." On Sept. 16th the USPTO issued it's first non-final action in relation to this re-exam. While, it looks like the scanned dept of the USPTO messed up and only included the first page of the nineteen total pages so one can't review the sites or if it's a 102 (novel) or a 103 (non-obvious) rejection, I can tell you was a patent attorney that 99% of the time you receive a first action non-final rejection.
It is almost like the examiner feels the need to "paper the file." What will happen next is that M$'s attorneys will respond to the action stating reasons the examiner is off of thier rocker (respectively of course).
The examiner will either cave and allow some or all of the claims, do another search and issue yet another non-final action, or issued a final rejection.
Now, if a final rejection is issued, it's not exactly final. M$'s attorneys will then file amendments after final, have a conference with the examiner and/or file an appeal to the USPTO Patent Board of Appeals. If THEY find for the examiner then M$ could file suit in federal court in D.C. If they find for M$ then the examiner may allow the case or simply do another search and find yet another reason to reject the patent application.
In other words, this is just the start of a very long and boring saga.
Remember:
;)
First a patent is afforded an assumption of validity, including the assumption that the invention is nonobvious.
Second, the question of nonobviousness is presented to a jury, most likely mainly made up of people that have only used AOL and have NEVER done anything remotely similar to programming.
Third, an obviousness or 103 rejection, requires the pieces of prior art that teach or suggestion that these pieces should be combined AND in their combination, each and every element of the invention is present. Remember prior art is typically printed publication (non-printed publications can be presented in court, but the USPTO won't use them in a Reexam procedure).
So, a clearly invalidating piece of written prior art is a "sure thing" compared to making the obviousness arguement, which is a crap shoot at best.
Another thing to remember is that a piece of prior art can help invalidate the patent on Summary judgement, while obviousness will typically require a trial. The difference in cost being hundreds of thousands of dollars.
But I will GUARANTEE you that they will argue obviousness, as well as non-infringement, and inequitable conduct. After all each argument means more billables!
It is possible that he filed a registration patent in Russia. However a registration patent is filed essentially as a copyright would be, when you file what amounts to be an invention disclosure. This simply provide one "proof" that the purported "invention" existes as of the date filed.
If one wishes to "enforce" a registration patent, one must prove in court, during litigation, that the registration should be accorded legal rights.
It's unfortunate that news sources don't take the time to research stuff like this.
Are you sure that wasn't decided on the grounds of an implied license?
First, on point two he states:
While it is most assuredly true that parties in a contract have a duty to mitigate their damages, that mitigation duty hasn't been applied as far as I can tell to copyright infringement. And even if it is applied to copyright issues, the duty to mitigate only goes to the question of the amount of damages sustained by the plaintiff, not to if the defendant is infringing.
Second, in point four he stated that:
First, it is clear that SCO is offer a per seat license at 50% and will increase after a certain date (Oct. 15>) Second, statutory damage amounts are provided by law to those who have a registered copyrighted work infringed. This amount is above any "ceiling" that Mr. Carey may mistakenly assert that exists.
Finally, Mr. Carey is right. If SCO's claims are without merit, then they have placed themselves at a huge risk of a substantial judgment against them. Of all our sakes, I hope that this is the case.
Said he ruled on the damage award (reducing them) and on the exemplary (trebel) damages (denying them). Didn't say if he was carrying over or not the JMOV that the defense surely put forward. Not unusual. Often settlements come around at this time frame do to the cost and uncertainty of an appeal.
Irreparable harm does not equal harm.
Irreparable harm means that the party can't be reasonably compesated with money. In this case the judge found that the patent holder can be compensated and that eBay has the cash to do it.
Actually, if a company doesn't find that their aspect is "patentable" they can file a statutory invention registration under 35 USC 157.
Also, if a company can show that their "aspect" has been made public for more than a year before the filing of the putative patent application, then the patent will be invalidated.
Finally, considering all of eBay's financial wherewithall, it's pretty clear that their isn't any evidence that this process was out their prior to the patenting of the invention.
Remember, in the US, the patent right goes first to those who invent the process/apparatus, not to those who file first, as in most other countries. So, if anything, this protects the "small man" that didn't have the money to hire a patent attorney immediately, or pay the fee to expedite it.
Finally, as you seem to have a dislike for big business, doesn't this case show that the little guy can still win?
...the judge:
;)
1.) Reduced the jury award from $35 million to $29.5 million. Not a LOT, but a few million here, and a few million there, you're soon talking REAL money.
2.) Did NOT make the case "special" even though the jury found that eBay was a "willful infringer." The judge COULD HAVE tripled the award AND added attorney fees.
3.) Ruled that eBay could STILL maintain their "infringing ways" even though patent law clearly provides that a patent holder has the right to excluded others from practicing their invention. Of course, the reports could have failed to notice that eBay was required to post a bond pending appeal and that that's the reason they can keep "infringing" the patent, at least until the Federal Circuit rules on this in a year or two.
These facts lead one to believe that the judge didn't agree with the jury in this case. While it most certainly will be appealed, I still wonder if the judge is concidering overturning the jury verdict, not withstanding the verdict.
So, while the posted comment seems to make it look like the judge is "going after eBay" and this now has some "finality" it actually appears to be quite the opposite.
And as to it being "stupid" to patent this? I can site 29.5 million reasons it wasn't for the inventor to patent it.
Oh, so to answer your specific question, find the bankruptcy ruling showing the disposal of the assets. It should be in the Federal Bankruptcy court where the bankruptcy was filed (normally where the action was filed). You'll be MUCH better off showing up (WELL BEFORE CLOSING TIME OR BEFORE LUNCH) and being really nice to the clerks. They typically are VERY helpful, unless you're an ass to them. Which why most clerks don't help attorneys.
Copyrights for Software Code are considered property and must be distributed if Chapter 11 occurs without a full asset purchase by another company.
The court appointed bankruptcy administrator will take "control" of the assest and do the best to ensure payment to the creditor (with certain classes of creditors taking what was owed them prior to others). Anyway, as this code is an asset it will be liquidated along with the other assets.
For example, the administrator may place the software rights up for auction and the highest bidder will take their rights. Or if a creditor has placed a lien on the registration rights, the rights may go to the creditor. However, one would likely argue that if the value of the registration exceeds the value of the debt for which the lien pertains, the rights should be sold and the creditor only takes the value of the debt.
So, even if SCO goes belly up, the registration rights (especially ones SO visible) will be still around.
Wouldn't surprise me if Solaia and/or the Niro firm bought the rights. See my journal entry of Tuesday July 22 if you want more detail on that.
Come on, if you filed a copyright registration for Windows 2000, we'd all be able to confirm you're a loon.
However, as SCO places themselve immediatately at risk of a suitby filing a registration and asserting their rights. Additionally, they do seem to have a legitimate claim to the code for which they registered (which was NOT Linux one must remember so your analogy of filing a registration on Windows 2000 isn't even close). Furthermore, as they actually HAVE equity and aren't judgment proof, as many on here are, then you should take them more seriously.
Finally, while you seem to think companies will do the "decent thing" by "point[ing] out the area of infringement" one simply doesn't. It's the nature of the beast. Of course, now that a suit has been filed, discovery will follow and we(or at least the parties in the suit) will know what's what.
Patience my young Padiwan. Rush not into area we see not well.
Nice example, but the problem is not akin to the present situation. These foreign countries (actually, the ones I get are from companies in foreign countries that have no real standing, typically ones that have notice we have filed a US trademark or patent and want to "help" us with foreign rights) have no possible credible basis. However, with SCO, they may. They have filed a copyright registration, now possibly subjecting users of LINUX to escalated statutory damages AS WELL AS attorney fees. They aren't going to go after the "small game" but the Fortune 500 types, so I'm not going to put my company into unnecessary risk. Hey, I sure hope there ARE a queue or plethora of developers to rewrite the "infringing code" (if any exists). But the fact is, if we have used code that we have been "put on notice" that infringes, at any time then my company may be liable for statutory damages (as SCO has received a registration). These damages aren't something to ignore. If my company is running only 100 LINUX boxes, and we fail to take a license, and are found to infringe, the damages may exceed $500,000 (plus attorney fees). That is a getting to be "real money" for "free software." Therefore, as stated, the prudent course is to hold off on additional implimentation (where reasonably possible); understand the risk better at your company (it's harder than running a simple script when you have tens of thousands of computers, and a multitude of locations behind various firewalls depending on the required security levels of the machines); and then, if you have a significant current risk or need (i.e. have or need a substantial number of LINUX boxes) you can impliment a detailed analysis of the validity of the copyright claim. However, if you are only running or needing a handful of boxes, the cost of such an analysis is counterproductive and the CHEAPEST course may be implimenting other software. Of course you can simply roll the dice with the companies risk. It worked so well at Enron.
You're encouraging me to adopt "free" software that may end up costing the company $500-$700 a seat (at best) or $5000 a seat if we are found to be infringers.
Who's not acting reasonably?
All I am recommending to my company is to hold of on implimenting software for which we cannot reasonably predict the cost. This is, right now, the "great unknown." While it certainly appears that this won't hold up, we need to step back, evaluate what the costs, risks, and benefits are before we continue down the path.
I fail to understand how it is a "disservice" to a company to evaluate software implimentantion on a cost/benefit analysis (including risk) PRIOR to implimentation.
Sure, it's always fun to shout "damn the torpedos" but if the benefit is negligible, I'll let some other company lead the battle, spend the money, while my company can sit back, watch and wait.
Granted, if it's determined that my company would lose considerable economic advantage NOT using LINUX, then we might take the risk. Until then, I'm going to keep the risks at a minimum. Remember, we're playing with real people, real money, and real stockholders. This isn't a SIM game.
Just remember that the conventional wisdom was also that Lemelson could never win. He's laughing all the way to the bank now!
I sure hope you don't work for my company. We'll be talking soon if you do. There's no reason to unreasonably subject a company to liability or additional liability regarding a clear risk. We simply don't know the risks associated with SCO's copyright registration. I, for one, will not allow my company to go blindly ahead. While I disagree with Gartner's first recommendation, I am recommending holding off on additional Linux installations/upgrades as well as ascertaining how many, if any, machines have the 2.4 Kernel (sounds like a disease now doesn't it.)
Go ahead and say "Torpedos be damned!" That course of action sure worked well with Lemelson! Only cost the average Fortune 500 company a million or so dollars!