Interview: Paul Cotton on Microsoft Participation in the W3C HTML Working Group – W3C Blog
As part of a series of interviews with W3C Members to learn more about their support for standards and participation in W3C, I’m talking to Paul Cotton from Microsoft and co-Chair of the W3C HTML Working Group.
First, let me thank you personally on becoming a co-chair of the W3C HTML Working Group. I am very happy with Microsoft’s commitment to the HTML Working Group and to HTML 5. Microsoft is collaborating very actively, and helping drive consensus around many HTML 5 proposals related to Canvas, Accessibility and Extensibility.
Q. Microsoft participates in a large number (~30) of W3C Working Groups and has shown this level of commitment for many years. You sent 12 people to the November 2009 HTML Working Group face-to-face meeting, an unusually high number of people from a single company for a face-to-face meeting. Why is Microsoft investing so heavily in the W3C HTML 5 effort?
Patent Exhaustion and Implied Licenses: Important Recent Developments in the Wake of Quanta v. LG Electronics | Publications | Morrison Foerster
The practical implications of the Federal Circuit’s Transcore decision could be significant. Partly to avoid patent exhaustion, it has become common practice for many patent owners to grant limited personal covenants not to sue rather than licenses – often expressly retaining the right to assert their patents against downstream customers of the covenantee. The Federal Circuit has now expressly confirmed what Quanta and other cases before it already implied: that for purposes of patent exhaustion a covenant not to sue amounts to authorization just as a license does. As Quanta made clear, patent owners seeking to avoid exhaustion must limit the scope of the licensee’s or covenantee’s authorization to sell. Sales exceeding the scope of the authorization remain unauthorized, and are themselves infringing, and thus do not trigger exhaustion. What courts will not allow, however, is the grant of patent immunity to a party upstream while a patent owner retains the ability to assert its patents against downstream customers.
More generally, patent owners and licensees or covenantees will need to consider carefully the implications of granting or obtaining a covenant not to sue instead of a license. While a covenant may be treated like a license for many purposes – including, for example, with respect to patent marking – it may still afford less protection than a license in the event of bankruptcy or a transfer of the underlying patent to a third party who does not agree to be bound by the covenant.
All licensors should be aware of Transcore’s holding regarding implied licenses by virtue of estoppel. Because such a license is, in effect, a license implied-in-law, disclaimers of implied licenses and even express exclusions of certain patents may not succeed in defeating the implication of a license as to patents that are necessary to practice the expressly licensed patents.
The impact of the Static Control and Hitachi decisions is less clear at this time. Both are district court decisions that are clearly inconsist
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