Let's say Apple successfully gets one of Burst's patents revoked, and it was one which Microsoft was successfully sued for breach of.

Does this mean Microsoft can now go and sue Burst to get their money back?

I agree. This lawsuit is simply an attempt by Apple to gain the upper hand in licensing negotiations; to show that they want to play hard ball. I expect it will be settled or withdrawn soon.

If it isn't a design for something I can hold my hand out and touch, it shouldn't be patentable.

You can hold your hand out and touch the general purpose computing device that has been programmed to implement the software method. Test satisfied.

Before you criticize this "smartass" answer, consider that anything you can name is merely a physical embodiment of mathematical equations describing natural conditions. Mechanical devices. Electrical circuits. Chemical reactions. It's all merely mathematics and experimentally determined constants.

You claim that the Burst IP shouldn't be patentable because it is merely "mathematics" and "algorithms". Prove it. Implement the IP without using a general purpose computing device.

The question is not whether you call something physical or mathematical, but whether the physical implementation of the mathematical is obvious in view of predecessing work that was published prior to the date of 'invention', which means work that was published before at least the filing date of the patent applications.

Microsoft's attorneys have not done this, and neither have you. Do not waste our time discussing hypothetical states of the law that have no realistic chance of coming into being. The Supreme Court has been quite clear on what is and what is not patentable subject matter, and you are certainly on the losing side of that argument.

BTW: The statute setting forth what is, and by implication what is not, statutory subject matter was enacted in 1952. The Supreme Court decisions enabling "general purpose computing device programmed to" claims is similarly ancient. Please explain how the software industry "bought" this legislation. Citations would be appreciated.

I suspect, actually, that Apple doesn't like it much at all. They're basically forced to try to patent any technology they might ever use, no matter how obvious, because otherwise someone else will patent it and sue them. That's just the way the system currently works. You can't blame companies for trying to protect themselves.

Now, companies that use these sorts of patents offensively are a different matter. But Apple, and most other large tech companies, don't do that. It tends to be small companies, often with no real products, that decide to try to strike it rich suing the big guys.

but Burst.com actually has useful technology, has owned the patents for over a decade, and most importantly, actually had highly regarded products that made use of the patents.

Burst.com's "technology" is an obvious engineering solution, and one that has been used for on-line multimedia distribution since before burst.com was even founded.

Apple is right to attempt to have their basic patents invalidated; they should not stand.

Ironically, this was taken not as a warning, but as a comfort to most medieval knights. They, like the vikings, preferred this as a means of death to sickness, etc. Hence the use of swords when executing nobility.

-WS

Well, speaking only for myself, no.

Burst.com's patent -- at least according to Groklaw -- seems like it's definitely invalidated by prior art. According to this article [playbacktime.com], both Apple and Real (and possibly Microsoft) had their own versions of the same functionality, predating the patent by Burst.

Honestly the fact that Burst.com (or whatever company it was before it became Burst.com) produced a number of useful products doesn't matter a whit to the fact that they have a crummy patent that they're obviously trying to make a buck off of. That said, I can't blame them either -- the USPTO issued this piece of trash that they're trying to litigate, and there's no way that it's going to go away unless it gets invalidated by a judge.

The MS suit ended in what to me is a draw -- an out of court settlement where MS effectively bought Burst's cooperation. Apple doesn't have a history of doing that, so I think this time we'll see a resolution. Arguably MS's solution happened because Microsoft was under criticism for deleting evidence and not otherwise behaving fairly -- so saying that Burst's patent has been held in prior trials really doesn't wash.

I respect Burst as a company, but based on what I've read from the Microsoft and now the Apple case, they're a company on their last legs, looking to capitalize on a few shoddy patents that they managed to get issued while someone at the USPTO wasn't doing what ought to be their job: looking for prior art. If Apple wins and Burst goes out of business, I'll be slightly sad, but not terribly upset -- when a company sinks to the level of litigating obviously general patents, they have no place staying in business. The fact that they might have made real contributions to the art of computing in the past only makes the company's death more painful, but no less necessary, to everyone involved.

Burst themselves had the foresight to develop their technology a number of years ago and patent their ideas. Check out their website and you will see that the "faster than realtime" technology that Burst developed is the only patents that they own.

Is that extraordinary technology, by any chance, also known as "caching"? How amazing that they should invent such a thing, only 30 or 50 years after it had been invented by other people. Or, considering it in a more abstract sense, only 5,000 years after some craftsman decided he'd pre-build his products so they'd be ready for periods of higher demand.

From their site:

burst.com is the pioneer of Faster-Than-Real-Time(TM) video and audio delivery over networks. The Faster-Than-Real-Time(TM) process delivers video in large advance bursts, saving it in a configurable local buffer, isolating the viewing experience from network noise and freeing up bandwidth to serve more users.

Sure sounds like caching to me. If that's the case, this is pure extortion.

Of course, if I had been issued a patent on something stupid and general, of course I'd try milk the hell out of it. If I were the CEO of a corporation, doing anything less would probably be construed by the shareholders as a failure to do my job.

That wouldn't mean that the patent isn't a bad one, or that it was stupid of the USPTO to issue it in the first place. The mistake here isn't Burst's -- they're just working with the hand of cards they've been dealt -- but the patent clerk's who let this slip through, even though there was reams of prior art: a feature in Apple's Quicktime and possibly something in Windows Media Player also.

Because this patent got issued, and the leadership of Burst.com has an obligation to try to make money (as does Apple), we have go witness this song and dance as the issue is worked out in the courts. Hopefully Apple won't shoot themselves in the foot the same way that Microsoft did, and snatch defeat from the jaws of victory.

But was it obvious a decade ago when Burst developed this technology?

Yes. Not only had other people come up with (and probably wrote/published articles about) similar ideas, they had actually implemented them in other products.

From this page [playbacktime.com], written by someone who was involved in the development of Apple's Quicktime:

Burst.com claimed to have a revolutionary way of delivering streaming content. Lossless. Faster than realtime.

Well, golly. You can deliver content losslessly and faster than real time via HTTP and FTP, too. Only Burst.com did this with a magical, proprietary protocol that required a magical, proprietary server that they would be happy to sell to you. The secret of the "secret sauce" that Burst.com CEO Richard Lang mentions in the feature is that there is no secret sauce. ...

If you have a really fast conneciton and there are no bottlenecks along the way, it lets you see/hear media almost instantly. It works by putting a huge buffer at the client, and then filling that buffer as fast as possible so that buffering time is minimized.

QuickTime's "Fast Start" provided much of this functionality with QuickTime 3's progressive streaming (1998), and QuickTime 6 added the final missing piece (random access) with its Instant-On feature earlier this year. RealNetworks uses a similar method to optimize the viewing experience in RealSystem 9.

Burst has 10 U.S. patents, according to their own page here [burst.com]. It's hard to tell which ones are really at issue (I haven't seen a list of the ones Apple is trying to have invalidated) but it almost certainly includes 5,262,875 [uspto.gov] which in my reading is the most general one.

This is their main claim:

We claim:

1. An audio/video file server for decompressing and distributing selected audio/video program information stored in a compressed digital format within the file server to one or more external playback stations for real-time viewing by users at those playback stations, the audio/video file server comprising:

storage means for storing compressed digital audio/video program information;

transceiver means, connected to the storage means, for receiving compressed digital audio/video program information from an external source over a time period that is less than a real time period required to view the audio/video program information to thereby update the compressed digital audio/video program information stored in the storage means;

a plurality of playback units, each associated with an external playback line and an external playback station and each including decompression means, for receiving selected compressed digital audio/video program information stored in the storage means, for decompressing the selected compressed digital audio/video program information received from the storage means, and for playing the decompressed selected audio/video program information in real time over the associated playback line to the associated playback station;

network interface means, connected to the storage means, transceiver means, playback units, and plurality of playback stations, for receiving playback requests from the plurality of playback stations; and

processing means, connected to the storage means, transceiver means, playback units, and network interface means, the processing means being responsive to the network interface means, following receipt of a playback request, for controlling the associated playback unit to play the decompressed selected audio/video program information in real time.

To me, that's pre