iRise sues Axure for "patent infringement"

6 Jun 2008 - 8:00am
6 years ago
72 replies
3822 reads
Fred Beecher
2006

All,

I really hope anyone considering iRise reads this before making their final
decision. We're a fairly small community and in general we all play well
together. Given this, it is *amazing* that we have a choice of tools to use.
So this kind of blatant and reprehensible grab for market share (see below)
should not go unnoticed.
Disclosure: While I do not work for Axure, I do have a formal agreement with
them to do training for their clients when they request it. Also, I am
admittedly an Axure fanboy. I have had no problems recommending iRise in the
past when the situation warrants, but after this that will change.

I learned last night that iRise is suing Axure for patent infringement.
Essentially, they're trying to sue Axure out of business.

http://www.centredaily.com/business/technology/story/638693.html

Mind you, the "patent" that's being infringed was filed by iRise on March
25, 2008, and it is essentially a patent on the idea of a rapid prototyping
& documentation tool:

"The patent, titled 'Systems and Methods for a Programming Environment for
a Simulation of a Computer Application," relates to interactive simulation
systems and, more particularly, to the editing and association of text-based
requirements in the context of an interactive simulation authoring
environment."

So essentially, every time we create an annotated wireframe (whether in
Axure or no) we are violating this patent. This is completely ridiculous.
Axure has been around since 2003 and iRise is suing for a "patent" they got
in 2008? Absurd.

What follows is complete speculation: I imagine that what's happening is
that iRise is losing LOTS of customers to Axure. Axure costs $589 per
license compared to iRise's $6,000 - $10,000 (yes, per license). That's *an
order of magnitude* more expensive. While for some customers the
capabilities of iRise are likely worth it, I'm guessing most are opting for
the cheaper option that does 95% of what iRise does. So, faced with a dire
financial situation, they're attempting to sue Axure out of business. Read
the article. The lawsuit says they want Axure to stop selling rapid
prototyping products. Axure doesn't sell anything else.

I am... I am very disappointed about all this. And while there's just no way
this lawsuit can go through, it still eats me up inside that a company that
plays in our relatively tiny little industry would pull crap like this.

Okay, time to cool off...

- Fred

Comments

9 Jun 2008 - 11:08pm
Kontra
2007

> I assure you if I walked into the lawyer's offices over at Google, Yahoo,
> Adobe, Microsoft, or pretty much any major Silicon Valley company and
> informed them that people were discussing and posting patents on it, this
> distribution list would *lose* every single one of those people as a
> contributor or subscriber to this list.

That may be the practice in those places, but doesn't make it any less absurd.

This is information that's publicly available to anyone with a web
browser in multiple different ways that are untraceable unless you're
under surveillance. How on earth can anyone prove that a person did
NOT access such public info? If you recuse yourself from every venue
that can conceivably address patents then I've got a cave for you just
north of Kabul. Just because you played ostrich on a mailing list does
not mean you didn't access it via multiple other ways. Presumption of
guilt doesn't require that you prove a negative.

You think those lawyers are going to bar you from accessing the
Internet at all? Just a few years ago the same lawyers would laugh at
anyone who even suggested that corporate employees could blog
publicly. Thousands of companies gave up that practice in a hurry.
Sure lawyers will tell you anything that causes them to do the least
amount of work. I'm very familiar with a highly regulated industry and
every time I design a B2B or B2C app, the lawyers first put up all the
barriers they can think of because...well, just because. Mostly
because they don't need to think through and solve problems, if they
are not forced to.

--
Kontra
http://counternotions.com

9 Jun 2008 - 11:23pm
Jeff Howard
2004

I'm concerned that nearly everyone seems to be looking at this from a
parochial perspective.

I live in the United States, but a huge percentage of this list does
not. It's not necessarily a given that everyone cares about US
patent infringement or the threat of civil suits, whether they work
exclusively in the web or not. For that matter, it's worth pointing
out that not everyone is in a position to care about the first
amendment to the US constitution.

I've always disliked the tyranny of the minority. The people who
squawk the loudest get what they want. To me, it makes just as much
sense for them to find their own patent-free safety list as it does
for the rest of the readership to change their behavior--which is
good because eliminating patents from the main discussion list is
never, never going to happen as long as we allow people to post from
e-mail.

// jeff

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Posted from the new ixda.org
http://www.ixda.org/discuss?post=29902

9 Jun 2008 - 11:47pm
Jared M. Spool
2003

On Jun 10, 2008, at 12:08 AM, Kontra wrote:

>> I assure you if I walked into the lawyer's offices over at Google,
>> Yahoo,
>> Adobe, Microsoft, or pretty much any major Silicon Valley company and
>> informed them that people were discussing and posting patents on
>> it, this
>> distribution list would *lose* every single one of those people as a
>> contributor or subscriber to this list.
>
> That may be the practice in those places, but doesn't make it any
> less absurd.
>
> This is information that's publicly available to anyone with a web
> browser in multiple different ways that are untraceable unless you're
> under surveillance. How on earth can anyone prove that a person did
> NOT access such public info? If you recuse yourself from every venue
> that can conceivably address patents then I've got a cave for you just
> north of Kabul. Just because you played ostrich on a mailing list does
> not mean you didn't access it via multiple other ways. Presumption of
> guilt doesn't require that you prove a negative.
>
> You think those lawyers are going to bar you from accessing the
> Internet at all?

It's clear that you don't understand how legal argument works.

It works like this: The lawyers, in the discovery phase, ask for every
email communication which could have mentioned the patent that landed
on your corporation's servers. They paw (using the latest e-discovery
technology) through each one and find the email that talks about the
patent. They then ask to depose each recipient of the email.

Your organization's represented counsel will then try to motion to not
have you deposed, but the objection will not be heard (because,
basically they have to depose you to find out if your testimony should
be struck). Then you spend hours in preparation, where the lawyers
tell you exactly how you should or should not answer each of the
possible questions they think you'll be asked.

Then you'll enter the deposition room and for somewhere between 4 and
12 hours (maybe as long as 18), you'll get asked dozens of different
questions, all getting to the same point: could you have been
influenced by this patent? Each time, your organization's represented
counsel will object on grounds that this testimony is unreliable or
not to point or outside the scope of interest. Each time, the opposing
counsel will instruct you to answer anyways. A court report (often
videotape these days) will record every ah, um, and but.

You have to be very careful about your words. One slip and you'll have
basically admitted that you did see the patent, you were aware of it,
and it *might* have influenced your subsequent work.

And that's just the first round.

Having just spent weeks pouring through 1000+ pages of similar
testimony from corporate executives, IT managers, and other witnesses
to render an expert opinion in a case I've been working on, I am
completely sympathetic to the what-you-don't-know-can't-be-made-into-
incuplatory-evidence train of thinking.

Again, folks, as crazy as it all sounds, it's a reality for some folks
(not all of us).

Please show some courtesy.

Jared

9 Jun 2008 - 11:54pm
Jared M. Spool
2003

On Jun 9, 2008, at 8:32 PM, Christopher Fahey wrote:

> For those concerned about the legal ramifications of exposure to
> competitors' patents, the best solutions seem to be:
> 1) Quit the list.
> 2) Quit your company (or client).

Oh, that's just silly.

There's lots of stuff we don't discuss openly on this list.

We don't talk about how much we charge. (It could possibly be seen as
price fixing.)

We don't talk about clients we dislike. (It could be seen as libel or
defamation of character.)

We don't talk about how stupid our co-workers or managers are. (It
would just be a career-limiting move.)

Why is it so important that we talk about this openly?

Nobody has said that people who are ok with the conversation shouldn't
talk about it at all. Andrei and others have just asked that we do it
in a way that doesn't put them at jeopardy. Why is that such a
difficult request?

I don't understand why this is so hard for some people to grok?

Jared

10 Jun 2008 - 12:21am
Kontra
2007

> It works like this:

Anyone can sue you for anything. The opposing lawyer's job is to make
your life as miserable as possible. Heck, they will try to go on a
fishing trip even if you were not involved in the design at all. This
is news to you? They can go through your corporate email, all manner
of correspondence or, if warranted, through your PC and hard disks at
work or otherwise. This isn't news either and it shouldn't be if you
decided to work in a corporation.

> I am completely sympathetic to the what-you-don't-know-can't-be-made-into-incuplatory-evidence train of thinking.

Therein lies the issue: "what-you-don't-know". Not being on a mailing
list that once in a clear blue sky may reference patents is no proof
that "you-don't-know". There are many other ways that you
"get-to-know." And my friend if you recuse yourself from all the
places that you can learn something, you'd be left so far behind in
your profession that I don't know why you'd bother coming into the
office.

And again, excepting specific cases of reverse engineer where allowed,
designing stuff by burying one's head in the sand only to come up for
air after the deed is done to see if anyone will sue is just not smart
business. Patents are public for a reason.

> Please show some courtesy.

I would when your corporate convenience doesn't trample upon the right
of others to discuss issues they deem important, and when the
arrogance with which this has been presented here is reconsidered.

--
Kontra
http://counternotions.com

10 Jun 2008 - 12:57am
Andrei Herasimchuk
2004

On Jun 9, 2008, at 10:21 PM, Kontra wrote:

> I would when your corporate convenience doesn't trample upon the right
> of others to discuss issues they deem important, and when the
> arrogance with which this has been presented here is reconsidered.

It's clear there are a select few of you who can't be reasoned with
and wish to engage some of us as if we wrote the law when we have not.
In times like these, it's up to the IxDA to decide how they want to
regulate themselves ad what policy they want moving forward.
Obviously, only they can they decide who does what and when on IxDA
servers on matters in this situation.

--
Andrei Herasimchuk

Principal, Involution Studios
innovating the digital world

e. andrei at involutionstudios.com
c. +1 408 306 6422

10 Jun 2008 - 1:16am
Kontra
2007

This is the arrogance I'm refering to:

> It's clear

Obviously, if you say so.

> there are a select few of you

You canvassed everyone on this list and now speak for them.

> who can't be reasoned with

Those who disagree with you must ipso facto be "unreasonable."

> as if we wrote the law

And you did cite the specific *law* that specifically bans email list
participation. It's of course not a matter of legal disputation as to
what's reasonable or theoretical exposure, it's all automatically
presumed knowledge, which cannot possibly be acquired any other way.

Fascinating.

--
Kontra
http://counternotions.com

10 Jun 2008 - 1:25am
Christopher Fahey
2005

I am more sympathetic to the argument that we should be sensitive to
the perhaps unjust constraints some of our colleagues have to work
around than I am to the more general suggestion that we should *all*
avoid exposure to patents. Avoiding exposure to information is, for
me, the antithesis of why I wake up every morning and, for that
matter, why I have a life in the first place. Chopping off any
subject from my potential inquiry would be a deal-killer on this
whole IxD career thing.

With regards to my two recommended solutions, I recommend 2 far over
1. I'd quit a job or lose a client long before I'd leave a mailing
list out of fear of exposure to forbidden information. Jared's
points about the existence of often-self-imposed limits on
self-expression are quite true and legitimate -- we all should take
care with our words and their effect on ourselves and others -- but
I can't think of any other sphere of life where I am asked to *not
look* at something freely available to others, except for maybe
fundamentalist religion and crime.

I will not (and can not) argue this on a professional level, but on a
personal level? Unacceptable.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Posted from ixda.org (via iPhone)
http://www.ixda.org/discuss?post=29902

10 Jun 2008 - 2:04am
Andrei Herasimchuk
2004

On Jun 9, 2008, at 11:16 PM, Kontra wrote:

> And you did cite the specific *law* that specifically bans email list
> participation. It's of course not a matter of legal disputation as to
> what's reasonable or theoretical exposure, it's all automatically
> presumed knowledge, which cannot possibly be acquired any other way.

For your perusal:
http://www.lawyersusaonline.com/reprints/burnslevinson5.htm

-----

"In Knorr-Bremse Systeme Fuer Nutzfahrzeuge Gmbh v. Dana Corporation,
383 F.3d 1337 (Fed. Cir. 2004), the court ruled there would not be an
adverse inference of willfulness from a defendant’s failure to obtain
or disclose an opinion of counsel.

Despite this decision, however, *a company accused of infringement
still has an affirmative duty to use due care in avoiding infringement
of the patent at issue.* The willfulness inquiry will depend on
whether the alleged infringer, ***when it learned of the patent,***
investigated the patent’s scope and formed a good faith belief the
patent was invalid or not infringed.

Notwithstanding the Knorr-Bremse decision, the best way to accomplish
this remains obtaining a competent opinion of non-infringement and/or
invalidity from competent patent counsel. *Simply reading the patent
at issue and comparing it to the accused device (the allegedly
infringing product) is likely insufficient.* Moreover, if the dispute
turns into litigation, the defendant will need to demonstrate that a
thoughtful and thorough investigation was conducted, in order to avoid
willfulness damages. "

-----

Emphasis mine. Feel free to read the whole thing. There's plenty more
found via Google where that came from.

If you engage in patent discussion or read or hear about a patent that
is similar to anything you are working on and then don't *immediately*
get your IP or patent lawyers involved to make sure they provide you
with an "opinion of non-infringement" then you are at risk for
increased damages if you are ever sued and found to be infringing. For
those that work for corporations, and not for themselves, this means
you are supposed to get lawyers involved the moment you engage in any
thread where a patent is discussed so the lawyer can then document a
non-infringement opinion of the work you are doing as it relates to
the patent in question.

You can pretty much guess how that might pan out. And you can see why
many lawyers instruct their engineering and design teams to avoid web
sites or discussion groups where it's ok to discuss patents openly.
Keyword: Openly.

The trick here is that if patent discussions happen *ON THIS LIST* and
I subscribe to the list via email, then all that discussion is on my
email server as if I had read it, even when I may have not. Try
proving that in a court of law, however.

Again, Kontra (or whoever you are hiding behind some anonymous nic)...
I honestly don't care what you think of the law itself or how "absurd"
you think it is or how arrogant you think I am for basically trying to
protect designers on this list from having to go through things I've
seen others go through and stuff I've been through myself.
Seriously... I'm just the messenger here and your tone with me is
about as out of line as it gets.

If you honestly don't believe me, then by all means, go ask a lawyer
specializing in IP and patents.

And yes... if you are telling me to remove myself from the list over
this issue because you will refuse to not engage in patent discussion,
then I'll gladly unsubscribe and walk away. And yes I'm *willing* to
risk being on the list as long as it is understood people won't
intentionally post patents or discuss them openly. IOW, that it is
against the organization's policy not to do so on the list. I fully
expect there to be a slip every now and then.

--
Andrei Herasimchuk

Principal, Involution Studios
innovating the digital world

e. andrei at involutionstudios.com
c. +1 408 306 6422

10 Jun 2008 - 2:28am
Kontra
2007

> If you engage in patent discussion

Nobody's forcing you.

> or read or hear about a patent that is
> similar to anything you are working on and then don't *immediately* get your
> IP or patent lawyers involved

Well, do so if you feel a need. Who's stopping you?

> to make sure they provide you with an "opinion
> of non-infringement"

That's YOUR lawyer proactively trying to protect you, that's not law.

> then you are at risk for increased damages if you are
> ever sued and found to be infringing.

So you're now saying willful negligence on your part puts you at risk?
Imagine that.

Let me know when you can cite what I asked below, referring
specifically to email lists as opposed to exposure in general:

> > And you did cite the specific *law* that specifically bans email list
> > participation. It's of course not a matter of legal disputation as to
> > what's reasonable or theoretical exposure, it's all automatically
> > presumed knowledge, which cannot possibly be acquired any other way.

> your tone with me is about as out of line as it gets.

It's preposterous for someone who so self-righteously dismissed any
disagreement by others on this subject to say that.

> if you are telling me to remove myself from the list over this

Unlike you, I'm not telling anyone to do anything. I'm telling you
that if you feel you must protect yourself for whatever reason you
feel justified, by all means do it. Don't tell me this overrides any
other concern anybody else on this list might legitimately have.
That's what's out of line.

--
Kontra
http://counternotions.com

10 Jun 2008 - 2:51am
Alexander Baxevanis
2007

So let me see if I understand things properly:

Let's say I work for Foobar Corp. and I absolutely hate my competitor,
Acme Corp.

Then I become aware of a patent that is highly relevant to the
business of Acme. (Foobar may not even own this patent)

All I have to do is find some e-mail addresses in the acme.com domain
and send them a copy of this patent.

And then I just wait until they release their next product and sue
them (or wait for the patent owner to sue them).

If things are really like this, I think all UX practitioners, whose
job is to be open to all sorts of information, should have something
to say about this situation. This is not unheard of: things like the
Designer's Accord for environmental issues have attracted considerable
support. Why not make something like that for patents?

Cheers,
Alex

Sent from my iPhone

On 10 Jun 2008, at 08:04, Andrei Herasimchuk <andrei at involutionstudios.com
> wrote:

>
> On Jun 9, 2008, at 11:16 PM, Kontra wrote:
>
>> And you did cite the specific *law* that specifically bans email list
>> participation. It's of course not a matter of legal disputation as to
>> what's reasonable or theoretical exposure, it's all automatically
>> presumed knowledge, which cannot possibly be acquired any other way.
>
> For your perusal:
> http://www.lawyersusaonline.com/reprints/burnslevinson5.htm
>
> -----
>
> "In Knorr-Bremse Systeme Fuer Nutzfahrzeuge Gmbh v. Dana
> Corporation, 383 F.3d 1337 (Fed. Cir. 2004), the court ruled there
> would not be an adverse inference of willfulness from a defendant’s
> failure to obtain or disclose an opinion of counsel.
>
> Despite this decision, however, *a company accused of infringement
> still has an affirmative duty to use due care in avoiding
> infringement of the patent at issue.* The willfulness inquiry will
> depend on whether the alleged infringer, ***when it learned of the
> patent,*** investigated the patent’s scope and formed a good faith b
> elief the patent was invalid or not infringed.
>
> Notwithstanding the Knorr-Bremse decision, the best way to
> accomplish this remains obtaining a competent opinion of non-
> infringement and/or invalidity from competent patent counsel.
> *Simply reading the patent at issue and comparing it to the accused
> device (the allegedly infringing product) is likely insufficient.*
> Moreover, if the dispute turns into litigation, the defendant will
> need to demonstrate that a thoughtful and thorough investigation was
> conducted, in order to avoid willfulness damages. "
>
> -----
>
> Emphasis mine. Feel free to read the whole thing. There's plenty
> more found via Google where that came from.
>
> If you engage in patent discussion or read or hear about a patent
> that is similar to anything you are working on and then don't
> *immediately* get your IP or patent lawyers involved to make sure
> they provide you with an "opinion of non-infringement" then you are
> at risk for increased damages if you are ever sued and found to be
> infringing. For those that work for corporations, and not for
> themselves, this means you are supposed to get lawyers involved the
> moment you engage in any thread where a patent is discussed so the
> lawyer can then document a non-infringement opinion of the work you
> are doing as it relates to the patent in question.
>
> You can pretty much guess how that might pan out. And you can see
> why many lawyers instruct their engineering and design teams to
> avoid web sites or discussion groups where it's ok to discuss
> patents openly. Keyword: Openly.
>
> The trick here is that if patent discussions happen *ON THIS LIST*
> and I subscribe to the list via email, then all that discussion is
> on my email server as if I had read it, even when I may have not.
> Try proving that in a court of law, however.
>
> Again, Kontra (or whoever you are hiding behind some anonymous
> nic)... I honestly don't care what you think of the law itself or
> how "absurd" you think it is or how arrogant you think I am for
> basically trying to protect designers on this list from having to go
> through things I've seen others go through and stuff I've been
> through myself. Seriously... I'm just the messenger here and your
> tone with me is about as out of line as it gets.
>
> If you honestly don't believe me, then by all means, go ask a lawyer
> specializing in IP and patents.
>
> And yes... if you are telling me to remove myself from the list over
> this issue because you will refuse to not engage in patent
> discussion, then I'll gladly unsubscribe and walk away. And yes I'm
> *willing* to risk being on the list as long as it is understood
> people won't intentionally post patents or discuss them openly. IOW,
> that it is against the organization's policy not to do so on the
> list. I fully expect there to be a slip every now and then.
>
> --
> Andrei Herasimchuk
>
> Principal, Involution Studios
> innovating the digital world
>
> e. andrei at involutionstudios.com
> c. +1 408 306 6422
>
> ________________________________________________________________
> Welcome to the Interaction Design Association (IxDA)!
> To post to this list ....... discuss at ixda.org
> Unsubscribe ................ http://www.ixda.org/unsubscribe
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> List Help .................. http://www.ixda.org/help

10 Jun 2008 - 5:35am
Jared M. Spool
2003

On Jun 10, 2008, at 1:21 AM, Kontra wrote:

>> I am completely sympathetic to the what-you-don't-know-can't-be-
>> made-into-incuplatory-evidence train of thinking.
>
> Therein lies the issue: "what-you-don't-know". Not being on a mailing
> list that once in a clear blue sky may reference patents is no proof
> that "you-don't-know". There are many other ways that you
> "get-to-know." And my friend if you recuse yourself from all the
> places that you can learn something, you'd be left so far behind in
> your profession that I don't know why you'd bother coming into the
> office.

It's a proof of burden thing. It's clear to me that you don't agree.
Doesn't make it any less of an issue for other people.

>
>
>> Please show some courtesy.
>
> I would when your corporate convenience doesn't trample upon the right
> of others to discuss issues they deem important, and when the
> arrogance with which this has been presented here is reconsidered.

No one is taking away your rights. This is a community. One which, in
my opinion, you're just trolling in.

What gives you the right to trample upon other people's concerns that
a little sensitivity and discretion is in order?

I'm hoping those that monitor these discussions put an end to this
soon. I fear the list will lose some talented contributors over this
insensitive trolling behavior.

Jared

10 Jun 2008 - 6:44am
Todd Warfel
2003

So, you're suggesting not even highlighting new patents when they come
out that relate to or impact this field?

No more "Hey, check out Apple's or Microsoft's new patent for [X]"
comments?

On Jun 9, 2008, at 11:14 PM, Andrei Herasimchuk wrote:

> Seriously.... do people want folks to quit the list over this issue?
> I assure you if I walked into the lawyer's offices over at Google,
> Yahoo, Adobe, Microsoft, or pretty much any major Silicon Valley
> company and informed them that people were discussing and posting
> patents on it, this distribution list would *lose* every single one
> of those people as a contributor or subscriber to this list.

Cheers!

Todd Zaki Warfel
President, Design Researcher
Messagefirst | Designing Information. Beautifully.
----------------------------------
Contact Info
Voice: (215) 825-7423
Email: todd at messagefirst.com
AIM: twarfel at mac.com
Blog: http://toddwarfel.com
Twitter: zakiwarfel
----------------------------------
In theory, theory and practice are the same.
In practice, they are not.

10 Jun 2008 - 6:50am
Todd Warfel
2003

Wasn't there a suggestion earlier that if you're going to discuss
patent information you tag the message with [patent]. This would allow
those who want to skip to to flag the message on their mail server and
have it quarantined prior to getting to the mailboxes of those who
don't want to risk it.

This way IxDA doesn't have to get involved and those who want to avoid
it can avoid it and we all display some professional coutesy.

On Jun 10, 2008, at 1:57 AM, Andrei Herasimchuk wrote:

> In times like these, it's up to the IxDA to decide how they want to
> regulate themselves ad what policy they want moving forward.
> Obviously, only they can they decide who does what and when on IxDA
> servers on matters in this situation.

Cheers!

Todd Zaki Warfel
President, Design Researcher
Messagefirst | Designing Information. Beautifully.
----------------------------------
Contact Info
Voice: (215) 825-7423
Email: todd at messagefirst.com
AIM: twarfel at mac.com
Blog: http://toddwarfel.com
Twitter: zakiwarfel
----------------------------------
In theory, theory and practice are the same.
In practice, they are not.

10 Jun 2008 - 3:51am
Gregor Kiddie
2008

At risk of becoming the voice of reason (something I'd never naturally
be accused of), this discussion is becoming much more bitter with the
sides becoming entrenched in their arguments.

For the sake of the myself (I can't claim to talk for the rest of the
list), who enjoys the light tone and high usefulness of this forum, I'd
ask for this subject either to be taken off list, or dropped entirely.

I respect the fact that everyone has an opinion, and that they may not
always agree with other people, but this discussion has moved away from
being useful and informative and is becoming about "winning".

Gk.

Gregor Kiddie
Senior Developer
INPS

Tel: 01382 564343

Registered address: The Bread Factory, 1a Broughton Street, London SW8
3QJ

Registered Number: 1788577

Registered in the UK

Visit our Internet Web site at www.inps.co.uk

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please contact is.helpdesk at inps.co.uk

10 Jun 2008 - 10:22am
Hines, Mark
2007

At the end of the day it is going to have to be the responsibility of the
subscriber to avoid these topics. There are simply too many potentially
"problematic" topics to manage proactively in a practical or foolproof way.
Especially in this environment.

This patent discussion is a perfect example. The fact that it was an issue
for some members of the community wasn't even understood until it was
probably too late. And as we've seen above accidents also happen. What
process would have prevented that? If having an email in your inbox is
problematic then it would seem that the best way to avoid exposure is to
never receive it. And how do you do that on an open list? Does tagging a
problematic email with a "problematic topic" tag in the header make it any
better? How many tags will we need? Where does it end? And finally, would
you bet your legal health on my listserv tagging diligence?

If you think liability or exposure is limited to IP or patents, think again.
In my personal experience things as innocuous as unsolicited resumes, job
postings and even current events have been legally problematic topics for
me. In some cases I could reasonably control my exposure in others I had to
make difficult choices, such as unsubscribing from this list for a period of
time. Frankly, it never occurred to me to ask the community to act on my
behalf.

However, if someone asked me to avoid discussing a topic in an open forum
because it might cause them harm, I probably would as a matter of common
courtesy. On the other hand I would also accept, albeit grumbling under my
breath, someone else's decision not to.

Mark.

On Tue, Jun 10, 2008 at 6:50 AM, Todd Zaki Warfel <lists at toddwarfel.com>
wrote:

>
> This way IxDA doesn't have to get involved and those who want to avoid it
> can avoid it and we all display some professional coutesy.

10 Jun 2008 - 10:31am
gretchen anderson
2005

Maybe this anecdote helps?

A recent client has asked me not to research certain products related to
what we are designing to preserve "deniability" of IP infringement. He
has asked his lawyers to thoroughly research the IP and be the people
who validate whether there is an issue or not. I can do the research,
but I'd be exposing myself, by my choice. I prefer to not actively look
into related products and be free to develop ideas. If I come up with
something that's patented, I have more freedom to explore/proceed with
those ideas because I can claim that I came up with them on my own.

In the same way, there's a request that we avoid discussion of patents
on this list. We can honor that request, or not. I think the suggestion
is that we will all be protecting ourselves if we did. If not, that's
your call.

10 Jun 2008 - 11:55am
Josh Seiden
2003

Folks,

The tone in this discussion has taken a turn towards the
unreasonable. Personal attacks such as the ones made here are never
acceptable in this community.

(I point you to our guideline on this subject: "Flaming,
name-calling, insults, taunts, or other behaviors that inhibit the
free expression of thought on the Discussion List are cause for the
offending subscriber's being permanently banned from the list.")

As a result of posts to this thread, we have decided to place one
discussion participant under moderation.

With that in mind, if any of you wish to continue the discussion,
please do so in a manner that demonstrates respect for your fellow
members of the community.

We do not like to place members under moderation, but we will not
hesitate to do so when we see the type of flagrant disrespect
demonstrated in this thread.

Thanks,
JS

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Posted from the new ixda.org
http://www.ixda.org/discuss?post=29902

10 Jun 2008 - 12:11pm
Todd Warfel
2003

On Jun 10, 2008, at 11:22 AM, Mark Hines wrote:

> Does tagging a problematic email with a "problematic topic" tag in
> the header make it any better? How many tags will we need? Where
> does it end? And finally, would you bet your legal health on my
> listserv tagging diligence?

Well, we don't need to tag everything — don't go overboard here and
use some common sense. This is obviously a sensitive topic and one
that would warrant such a workaround. So, where does it end? Well, for
now it could end w/[Patent]. It doesn't need to go further than that
for now. Take it case by case.

Cheers!

Todd Zaki Warfel
President, Design Researcher
Messagefirst | Designing Information. Beautifully.
----------------------------------
Contact Info
Voice: (215) 825-7423
Email: todd at messagefirst.com
AIM: twarfel at mac.com
Blog: http://toddwarfel.com
Twitter: zakiwarfel
----------------------------------
In theory, theory and practice are the same.
In practice, they are not.

10 Jun 2008 - 12:35pm
Andrei Herasimchuk
2004

On Jun 10, 2008, at 10:11 AM, Todd Zaki Warfel wrote:

> Well, we don't need to tag everything — don't go overboard here and
> use some common sense. This is obviously a sensitive topic and one
> that would warrant such a workaround. So, where does it end? Well,
> for now it could end w/[Patent]. It doesn't need to go further than
> that for now. Take it case by case.

I think Jared made a good point here. It's largely about professional
courtesy and no technological solution will be perfect. (Although I
certainly would welcome either a tagging system or a way to subscribe
to a list where the rules were explicit that no patent discussions was
allowed, and links to the U.S. patent website were blocked.) There are
many things we understand that we don't do on this list, and this
issue should be considered one of them. Will people unintentionally
post patents? Sure, but we if all understand the rules, it will get
corrected and self-policed. Over time, people will learn. It will
become more and more understood what you should avoid and it will
happen less and less.

If this list refuses to police itself, then you are leaving it up to
the lawyers to police people who work in their organizations for you,
and that basically means everyone might lose. Why? It is my experience
that lawyers are very risk adverse by nature and they tend to wield a
jackhammer. In this case, I fear they will ask their contributors to
remove themselves. I'm not sure why anyone would find that the right
thing to do especially for a growing organization that aims to support
design professionals in the corporate world.

While working at Adobe, I remember there was a website blacklist for
high profile engineers and designers to stay away from, and the IT
guys even blocked certain websites inside the firewall. I was often
instructed what to avoid, and all I'm doing is relaying some of that
advice. Why? Because I feel to not do so would be a disservice, not
because I'm trying to be "right." It's a pretty simple thing to avoid
doing, and as the IxDA grows more and more into a large professional
organization, it's issues like this that will become more important
for everyone to be cognizant of, regardless of the final policy outcome.

If you want to practice professional product design -- and this is
already well understood in the industrial design world -- patents are
part of the game. Pure and simple. I recognize the people who are
affected by this may be smaller in number at the present moment,
although I suspect many of you might be unaware of where the company
you work for stands on this issue. If you are unaware, simply walk
over to your friendly corporate lawyer and ask them, "hey... if you
got a moment, could tell me all about this patent thing and what I
should know going forward?"

--
Andrei Herasimchuk

Principal, Involution Studios
innovating the digital world

e. andrei at involutionstudios.com
c. +1 408 306 6422

10 Jun 2008 - 2:52pm
Hines, Mark
2007

On Tue, Jun 10, 2008 at 12:11 PM, Todd Zaki Warfel <lists at toddwarfel.com>
wrote:

>
> Well, we don't need to tag everything — don't go overboard here and use
> some common sense. This is obviously a sensitive topic and one that would
> warrant such a workaround. So, where does it end? Well, for now it could end
> w/[Patent]. It doesn't need to go further than that for now. Take it case by
> case.
>

All very good points. Perhaps I was overstating it. If this is really about
making someone feel more comfortable about participating or simply raising
awareness then by all means add a rule. My note was directed a little more
towards those who may be at risk than those who would have to implement the
rule since a loosely enforced guideline on an open list that you voluntarily
subscribe to is a pretty thin veil. Andrei offers some sage advice in his
last note:

If you are unaware, simply walk over to your friendly corporate lawyer and
ask them, "hey... if you got a moment, could tell me all about this patent
thing and what I should know going forward?"

Mark Hines.

10 Jun 2008 - 2:55pm
Susie Robson
2004

My guess is that you would get a completely different answer to these questions:

"hey... if you got a moment, could tell me all about this patent
thing and what I should know going forward?"

"hey... if you got a moment, could tell me all about this patent infringement thing and what I should know going forward?"

Susie

-----Original Message-----
From: discuss-bounces at lists.interactiondesigners.com [mailto:discuss-bounces at lists.interactiondesigners.com] On Behalf Of Mark Hines
Sent: Tuesday, June 10, 2008 3:53 PM
To: IxDA Discuss
Subject: Re: [IxDA Discuss] iRise sues Axure for "patent infringement"

On Tue, Jun 10, 2008 at 12:11 PM, Todd Zaki Warfel <lists at toddwarfel.com>
wrote:

>
> Well, we don't need to tag everything - don't go overboard here and use
> some common sense. This is obviously a sensitive topic and one that would
> warrant such a workaround. So, where does it end? Well, for now it could end
> w/[Patent]. It doesn't need to go further than that for now. Take it case by
> case.
>

All very good points. Perhaps I was overstating it. If this is really about
making someone feel more comfortable about participating or simply raising
awareness then by all means add a rule. My note was directed a little more
towards those who may be at risk than those who would have to implement the
rule since a loosely enforced guideline on an open list that you voluntarily
subscribe to is a pretty thin veil. Andrei offers some sage advice in his
last note:

If you are unaware, simply walk over to your friendly corporate lawyer and
ask them, "hey... if you got a moment, could tell me all about this patent
thing and what I should know going forward?"

Mark Hines.
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