Re: [TLS] Document Action: 'TLS Elliptic Curve Cipher Suites with SHA-256/384 and AES Galois Counter Mode' to Informational RFC

[Dean Anderson <dean@xxxxxxx>]

I hate to respond to my own message, but this deserves some elaboration.

> You're spreading baseless, willful ignorance---which doesn't alter any
> facts for any infringement claim. Anyone following your advice and uses
> this algorithm without permission, infringes.  You have no credible
> basis to assert there is no infringement.  Please stop.

I have discussed this with lawyers. The only time you can use ignorance
as an intentional infringement defense is if you've never conducted a
patent search. Patent lawyers I've talked with advise engineers against
conducting patent searches for this reason. Once you conduct a patent
search, that is enough evidence to show that you knew of the
patent---even if you actually incompetently performed the patent search
and really, truly didn't find the patent due to incompentence.  
Performing a patent search is evidence of knowledge of the patent.  A
self-serving claim that one didn't find what was actually there is not
going to be very credible. In this case, you actually know specifics of
the patents.

Willful ignorance is no defense to intentional infringement--it would
probably be used to support the plaintiff, in fact. Unreasonable
actions--those that vary from what a hypothetical reasonable person
(usually the jury) would do, are usually evidence supporting the
complaint.  Reasonable people respect the law, and are expected to
perform their lawful duties to their fellow citizens, even when they
don't like to.  Indeed, unreasonble actions and a disregard for the law
are the foundation of criminal intent. Just ask Bernie Ebbers.

If you want to argue a patent doesn't apply to your work, you better
have very solid reasons that will stand up in court---Something that
proves that it is reasonably impossible that the patent could apply to
your activities. And you obviously don't have that in this case.

		--Dean

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