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Subject: Re: [oiic-formation-discuss] Proposed Use case -- Interoperability in vertical and horizontal ODF markets

On Sun, Jun 29, 2008 at 11:47 PM,  <Andrew.Updegrove@gesmer.com> wrote:

>> I note your attempt to change the subject of this thread with only an
>> appeal to ignorance. I decline your flame bait. Do you have anything
>> to offer to the discussion of the technical or legal merits of my
>> proposed use case regarding interoperability in vertical and
>> horizontal ODF markets?
> Paul, it was a last attempt to try to see whether your place in the
> community could be salvaged, intended in friendship.  This listserv has a
> purpose defined by consensus, and not by a single participant.  No one has
> an obligation to respond to everything, or even anything, you say, if they
> don't think it is within scope, or has already been adequately addressed, or
> is without merit.
> If that is flamebait, then I think that our ability to communicate is over.
> Goodbye, Paul.  It was nice knowing you, up to a point.

I note that you respond only with another excuse for not addressing
the merits of my proposal, including an implicit mischaracterization
of the law reqarding the consensus process that must be observed. The
Supreme Court disagreed in some detail with your characterization of
"consensus" in the Indian Head decision.

The consensus to be achieved at this meeting must be:

"based on the *merits* of objective expert judgments and through
procedures that prevent the standard-setting process from being biased
by members with economic interests in stifling product competition."

Allied Tube & Conduit v. Indian Head, Inc., 486 U.S. 492 (1988),
(reinstating jury award of treble damages under the Sherman Act)
(footnote omitted) (emphasis added).

You have contributed nothing going to the merits of my proposal in
this thread and you ignore the complete absence at this meeting of
"procedures that prevent the standard-setting process from being
biased by members with economic interests in stifling product

You skip past the merits of my proposal, all due process components of
consensus, and the fact that the scope of the charter remains to be
determined merely to impugn my character and reputation by suggesting
that my "place in the [unidentified] community" is in need of
"salvage," a consistent theme of a host of attacks on my character and
reputation you have made without factual or legal basis, both on this
list and on your blog.

Please notice: [i] the title of this thread, a use case regarding
"interoperability in vertical and horizontal markets;" and [ii] the
Court's concern about agreements among competitors in vertical and
horizontal markets with anti-competive effects in the Indian Head
decision, supra:

"Typically, private standard-setting associations, like the
Association in this case, include members having horizontal and
vertical business relations. See generally 7 P. Areeda, Antitrust Law
ยง 1477, p. 343 (1986) (trade and standard-setting associations
routinely treated as continuing conspiracies of their members). There
is no doubt that the members of such associations often have economic
incentives to restrain competition and that the product standards set
by such associations have a serious potential for anticompetitive

(".My use case is carefully tailored to expose interoperability issues
that *must* as a matter of law be addressed in the OIIC TC's
interoperability work.  My use case is based on the present state of
the ODF standard, prior statements by IBM officials as to the types of
interoperability they deem necessary to fulfill market requirements in
the market for office productivity software, and the body of U.S.
antitrust law governing mergers of and agreements among competitors in
vertical and horizontal markets, the body of law of which antitrust
law applicable to voluntary standards organizations is only a art. .

 In this thread your only apparent role has been to further the cause
of "stifling product competition" in both horizontal and vertical ODF
markets. by those with "economic interests in stifling product
competition" though your diversions from a discussion of the merits of
my proposal. You have no excuse of ignorance of that law; you head a
team of nine lawyers in your firm who specialize in the law governing
consortiums of competitors.

Look down, Mr. Updegrove. That thin ODF legal ice you were skating on
broke long ago. You took your first full plunge into a Sherman Act
section 1 conspiracy in restraint of trade the first time you
committed a single overt act in furtherance of the unlawful goal. You
know the law in this area, despite your continuing efforts to
mischaracterize it in your many appeals to ignorance sprinkled across
the record of this meeting.  I privately directed your attention to
the Indian Head decision many months ago in regard to OASIS and the
ODF TC and well before that a summary of that decision was posted on
your Standards <meta> Library.

Moreover, in your first attack on my reputation and character at this
meeting, you stated that you lacked the technical training to
participate on this list. With an admitted lack of technical knowledge
necessary for participation, you have scant basis at best for
pronouncing the applicable law. In principled legal analysis, one
necessarily determines what the relevant facts are before deciding
what result the law commands. You, sir, admittedly participate without
knowledge of the facts and your opinions as to the controlling law are
without an informed factual basis. That you mischaracterize the law
you speak of only further detracts from the weight your opinion

Please desist from further attempts to divert attention from the merit
of this or any other proposal I have made or make. You merely deepen
the plunge you have already taken into unlawful conspiracy in
restraint of trade.

Best regards,

Paul E. Merrell, J.D. (Marbux)

Universal Interoperability Council

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