Em 08/02/2009, às 12:10, Nicholas Blachford <nicholas@xxxxxxxxxxxxxx> escreveu:
No, I think this is exactly *not* the time.Given that they'd respond with a lawsuit listing umpteen hundred patents Haiku infringes, it would be suicidal.
The Haiku trademark is valid, therefore it must be defended against misuse/abuse, else it will be deemed invalid. Period. As simple as that.
Regarding the patent status, I can't see how mentioning patents one have nothing to do with could be a sound defense in a *trademark* litigation. You can't just be Microsoft and base your trademark litigation claims against Windows Vista Soda on the fact that WVS Limited stole the Coke formula from The Coca-Cola Company. Unless Microsoft is a licensee of TCCC's IP, TCCC and it's licensees and they alone are responsible for protecting the formula. Not some other random company.
And even then it must be proved that there was IP theft and not reverse-engineering for interoperability reasons or just plain coincidence. In order to seek for damages, it must be proved that the violation was willful and deliberate.
Thinking the imaginary patent holders are unaware of Haiku is just as silly. Haiku Inc is a non-profit organisation whose yearly income is a hair over what street beggars manage to get. But still the source code is open and licensed under very liberal terms, so it's not like patent holders can claim both financial damages over, and recent discovery of, misappropriation of their IP.
And recently there was a court decision which pretty much rendered 90% of software patents invalid or unenforceable. Remember patents can only cover specific implementations, not general ideas or facts of the Nature. So unless Haiku mimics some interface (its presentation or its means of receiving input) pretty much verbatim (not the case, we don't use any of Be, Inc art, and even then it would be a matter of copyright, not patents; and we don't enable the Freetype TrueType hinting interpreter that Apple has patents on by default) to the point of it being confused with another patented product, *or* we misuse some process representing a transformation of some goods into another (in our case, the goods would be information) by the means of a mechanical device, ie a computer), and it can be successfully argued that it's not just conveyance of (untransformed) information or transference from one medium to another, I'd say bring it on.
Else the trademark could be lost.