EFF, Apache Side With Microsoft In i4i Patent Case

msmoriarty writes "Looks like Microsoft has gained some unlikely allies in its ongoing (and losing) i4i XML patent dispute: the Electronic Frontier Foundation and the Apache Software Foundation. The reason? Microsoft has decided the strategy for its Supreme Court appeal will be to argue that the standards of proof in patent cases are too high — this from a company that has thousands of patents it regularly defends. The EFF explains in a blog post why it decided to file the 'friend of the court' brief on Microsoft's side."

Re:Damn hippies...

[Darkness404]

I think Microsoft and the rest of the software companies have realized that patent-trolls do more harm than good. The thing Microsoft wants isn't profit anymore, they have enough of that but rather influence, because influence will help them with support contracts, where they can make the easy money. All Microsoft really has to do is keep Windows how it is to make there be little to no learning curve and they've won the OS market. Apple still shows no sign of slowing down their overpriced hardware, yes, I know if you put everything that Apple puts in their machines you get essentially the same price, but most people don't have a desire to spend $1,000+ on a laptop that can do, for them, everything a $500 machine or cheaper can. Linux keeps getting more user friendly every day but it still isn't Windows and it still isn't pre-loaded on most machines by default (or when it is, its simply marketed as a free alternative to Windows lacking some features rather than a viable alternative OS).

If Microsoft can keep doing what they are doing, they can continue to rake in profits. Heck, the more patents they squash the easier developing is for them so they can keep more of the profits.

In all honesty, I don't think many corporations enjoy patenting everything, but with the way that the system is, if you don't have the patent you don't know who is going to try to sue you next...

Re:Damn hippies...

[morgan_greywolf]

It's interesting to notice M$ is suing Motorola instead of Google.

Not really. Google doesn't make phones. All they do is provide some specifications and some (open) source code. The people to sue are the people making and selling the products, not someone simply providing the tools to make and sell products.

IOW, if you designed a new engine and patented some aspect of that engine, you don't sue the designer of a competing engine that infringes patents, you sue the car companies that put that engine in their cars.

Not that I normally defend Microsoft's behavior, but they did pick the appropriate defendant in this case.

Re:Damn hippies...

[Grond]

I think Microsoft and the rest of the software companies have realized that patent-trolls do more harm than good.

I call bullshit.

By what standard is Microsoft a patent troll in that instance (or any other instance)? It makes and sells products that incorporate the claimed features, and it licenses the patents to others. It's as far from a non-practicing entity as you can get. It's also suing a company that definitely has the resources to defend itself. It's not using patents as a cudgel against some upstart competitor.

Someone mentioned that Microsoft only sued one company. The others Android handset makers likely have licenses, especially given that they make Windows Mobile / Windows Phone 7 phones.

I suppose you could define a patent troll as "the patentee in a patent infringement lawsuit," but that's not a very useful definition.

Re:Submitter's implication is unsupported

[Anonymous Coward]

Microsoft has a problem. Empire building. Head count is very important in determining your importance at Microsoft. If department A ships Microsoft Bob four years late but has 500 people, while department B makes a game changing new business application on time with 50 people, the guy running department A is doing "better".

Suppose you're the head lawyer at Microsoft. You cannot achieve even minimal success by creating stuff, so your only way to "improve" is through growing your empire - hiring more lawyers and finding stuff for them to do. Sue some little embedded company. Write and rewrite the T&Cs for some web site Microsoft will abandon a few weeks later. Anything to keep the workload high and justify more hiring, more headcount, more importance.

Hence e.g. Mini microsoft. People inside Microsoft who want it to succeed think it should be firing, not hiring.

Re:Fun times...

[Dachannien]

Currently, a patent clerk has less than 4 hours to determine if a patent application should be approved or not.

It depends on how you divide up the allotted hours, but 4 hours might be true only for the simplest of arts (generally mechanical arts in very mature fields).

Examiners get a certain number of hours for (more or less) two reviews of an application. The first review usually results in a non-final rejection, and the second results in either an allowance (resulting in an issued patent), a final rejection (if the examiner did a good job on the non-final rejection), an abandonment (if the applicant fails to respond within the time limit), or an appeal (if the applicant appeals to the BPAI, or Board of Patent Appeals and Interferences, the examiner must respond to the applicant's appeal brief). Each of these is worth a certain amount of credit to the examiner, called "counts", and examiners are supposed to get a certain quota of counts depending on their pay grade, the art they work in, and the number of hours they work.

These two reviews (non-final and final, along with the associated paperwork involved in disposal of the case) are essentially allotted a certain number of hours total. For examiners in simpler mechanical arts at higher pay grades, this number could be around 10, but for new examiners in complicated electrical arts, it could be 40 or more. That's not to say that this is enough time to review these cases, and many newer examiners work substantial amounts of voluntary overtime in order to meet their production requirements.

On a side note, all patent examiners must have a degree in an engineering field. Most of the training for the job is associated with the legal aspects of examining patents, but there is some technical training as well (usually higher-level general stuff to familiarize examiners with certain terms and concepts in the art). Also, examiners are assigned to examine a particular art, and they usually don't switch around much, so over time, they become very knowledgeable about their art. Some arts have a tough time with this because high turnover has kept much of the workforce green, but other arts have examiners with 10-20 years of experience examining patents.

Re:Damn hippies...

[sumdumass]

I think they had a great strategy if you look into it deep enough.

They want this patent controversy and they want news of it in the main stream press because they are selling their windows 7 version of phone operating system and one of the key selling point they are making seems to be patent suit indemnification. With McBride and SCO Group more or less gone, the don't have a puppet company to show the dangers of patent suits. So they defend this case as illegitimate to show that due diligence isn't always enough, push their own case as legitimate, and claim you can avoid it all by using windows 7 and certified Microsoft products.