Re: [codec] Skype IPR disclosure

"Benjamin M. Schwartz" <> Wed, 24 March 2010 21:29 UTC

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Date: Wed, 24 Mar 2010 17:30:10 -0400
From: "Benjamin M. Schwartz" <>
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To: stephen botzko <>
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Cc: Codec WG <>
Subject: Re: [codec] Skype IPR disclosure
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stephen botzko wrote:
> I think it is unreasonable to require IPR holders to unconditionally promise
> to not assert their patents under any and all circumstances. 

I am not asking for such an unconditional promise.  I am just noting some
restrictions that seem especially onerous to me.

> In practice the first clause does not immunize Skype from lawsuits.  Many
> companies have similar "defensive suspension" clauses, and they still get
> sued fairly regularly.  

There are different kinds of defensive suspension.  For example, the W3C
allows defensive suspension, but only for lawsuits on patent infringement:
a W3C Royalty-Free license ... may be suspended with respect to any
licensee when licensor is sued by licensee for infringement of claims
essential to implement any W3C Recommendation ... [but] may not impose any
further conditions or restrictions

That seems like a reasonable case for defensive suspension.  Skype's
wording, by contrast, is totally unreasonable, as it extends the defensive
suspension to _all_ lawsuits, no matter their object.  I expect most
companies to use the IWAC, and maybe even most humans eventually.  The
retroactive revocation means that these people can be deterred from suing
Skype/Ebay even after the patents have all expired.

It's absurd, not to mention legally questionable.

> The second clause ensures that someone outside the IETF cannot take the
> Skype technology, improve it, and offer a competitive proprietrary codec
> that uses Skype IPR. If you modify the codec, you should be doing it in the
> context of the IETF standard.

And once the standard is made?  Skype could effectively block the IETF
from creating an improved version of its own codec, or any optional
extensions (they're not "necessary").  I don't think that's reasonable at all.