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US Gov't Sides Against Microsoft In i4i Patent Case 193

Posted by Soulskill
from the should-have-lobbied-harder dept.
Julie188 writes "In the ongoing patent infringement case between i4i and Microsoft, i4i has won a powerful ally: the US government itself. The US solicitor general, which represents the federal government in the Supreme Court, on Friday filed an amicus brief in support of i4i, saying that the US Patent and Trademark Office should not be second-guessed by a jury. i4i, which won a $290 million patent judgment against Microsoft, has now accrued 22 amicus briefs in its corner, representing more than 100 companies, organizations and individuals, including venture capitalists, individuals from the military and now, the government. Meanwhile, Microsoft has so far lined up 20 amicus briefs, representing about 60 companies and individuals, including Google, Apple, Cisco, Intel, Red Hat, the Electronic Frontier Foundation and 37 law and economics professors. At issue is how much evidence is required to invalidate a patent."
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US Gov't Sides Against Microsoft In i4i Patent Case

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  • by unity100 (970058) on Monday March 21, 2011 @08:19PM (#35566876) Homepage Journal
    is Electronic Frontier Foundation. Actually, i think u.s. patent office should not be second guessing EFF, since their competence and understanding of these issues far surpass patent offices', leave aside any corporations'.
  • Why Not? (Score:4, Insightful)

    by WrongSizeGlass (838941) on Monday March 21, 2011 @08:27PM (#35566940)

    saying that the U.S. Patent and Trademark Office should not be second-guessed by a jury.

    Why not? If 12 people who weren't smart enough to get out of Jury Duty can see the obviousness of some patents why not let them have their shot? Here on /. we almost always second-guess the USPTO.

    • Re:Why Not? (Score:5, Insightful)

      by 19thNervousBreakdown (768619) <davec-slashdot@@@lepertheory...net> on Monday March 21, 2011 @08:40PM (#35567054) Homepage

      I would prefer to negate the need for second-guessing the USPTO at all, as would, apparently, everybody who actually makes things for a living.

      It's got to be getting harder and harder to claim that the patent system exists to "promote the Progress of Science and useful Arts", when regardless of why it was created it clearly now exists to line otherwise uninvolved parties' pockets off of the capital friction.

      • Re:Why Not? (Score:5, Insightful)

        by PopeRatzo (965947) * on Monday March 21, 2011 @10:24PM (#35567824) Homepage Journal

        It's got to be getting harder and harder to claim that the patent system exists to "promote the Progress of Science and useful Arts"

        Does anyone bother to still claim that? It seems like the people who have been attacking the real intent of intellectual property, people like the patent trolls and just about every big corporation and the RIAA and MPAA and Sony and Disney, etc etc are dropping a lot of the pretense and are getting a lot more comfortable just letting the evil show through. Because they can.

        It starting to seem like a lot of the really really bad actors in our world who have maybe kept a low profile over the past decades or at least spent a lot of money on public relations and image management are starting to just figure "what the hell" and are letting it all hang out. I'm seeing it in the political sector, the financial sector, the corporate sector. Look at the huge "Fuck You" that's implicit in AT&T's takeover of T-Mobile. They're saying to the Justice Department: "Don't even think about stopping us because we're bigger than you". Look at the Koch Brothers and their no-bid takeover of Wisconsin public utilities via the teabagger government. Look at the health insurance companies and their 50% increases in premiums, claiming it's because of health care reform even though the meaningful part of health care reform is still a year away. Look at Sony. Look at the banks and the mortgage servicing scandals. foreclosure scandals and newly announced $5 ATM fees. Look at the oil companies. It's like they feel like there's no longer any need to spend money and effort to appear like their benign because their power puts them out of our reach. Maybe they're right.

    • by pwizard2 (920421)
      It's strange why people view jury duty as something to avoid when it an excellent opportunity to practice persuasion skills. With both of the parties involved in a trial counting on your support, you can manipulate the outcome of a case as you see fit (possibly even setting precedent in some instances) if you can convince the other people in the jury to go along with you.
    • Re:Why Not? (Score:5, Insightful)

      by Altanar (56809) on Monday March 21, 2011 @09:45PM (#35567570)
      "smart enough to get out of Jury Duty'"... Please, enough with the ancient comedy routine. There are many people, myself included, who don't try to weasel out of their civic duty. I guess it's better this way, though. I really don't want someone who cares so little about the legal system to decide my fate if I were ever arrested for something.
      • Re:Why Not? (Score:4, Informative)

        by hairyfeet (841228) <bassbeast1968@@@gmail...com> on Monday March 21, 2011 @10:17PM (#35567758) Journal

        Uh huh, let me tell you a little story bud. my mom did her civic duty, even used up her vacation time to sit on a jury. Afterward she came in looking like a ghost and said "NEVER take a jury trial EVER! ALWAYS take a judge!" when I asked her what happened here is what I was told:

        It was a simple arson case which frankly never should have been brought to trial. The investigator admitted under oath he didn't know WHAT had started the fire, couldn't even say for sure it was arson, the guy had NO motive as he didn't even have enough insurance to cover the place and was gonna have to file bankruptcy and probably lose his home as well, yet the jury voted 11 to 1 to convict Why would they do that with no evidence? "Because he is Italian and Italians are in the mob and burn buildings. Haven't you seen Goodfellas?" That's right children, if my mom hadn't been on the jury that guy would be 10 to 20 thanks to a Joe Pesci performance.

        As for TFA MSFT should have done the smart thing and just bought the company out. It just shows what a shitty leader Ballmer is compared to Gates because once it looked like they had a chance Gates would have just bought them out and called it a day. The last thing MSFT needed was more negative publicity, especially with regards to their Office suite which is what this is about. They should have just bought them out and moved on.

        • And you know why the other 11 people on the jury were morons? Because of people like the original poster, who think that getting out of jury duty is something that people should automatically try to do. You know why it wasn't a unanimous jury verdict? Because your mother did her civic duty.

          Want to improve the jury system? Pay expenses for jurors at a reasonable rate.

          • by JamesP (688957)

            Except that dropping the (even slightly) smart people is the first thing they do in a jury selection.

            Ok, granted, in this case of "people vs. arsonist" it was probably not so much a strong jury selection. Still.

        • by tixxit (1107127)
          Uh huh, let me tell you a little story bud. My friend did his civic duty, but didn't have to use up his vacation time as his employer is socially responsible and gives paid leave for Jury Duty. Afterward he came to me looking satisfied. He thought the experience was rewarding in its own way, while being annoyingly tedious at some points. The crown had brought a good case and there was no doubt in their mind that the accused had committed the crime (rape). They sent a bad guy to jail and he got to learn abou
        • by tehcyder (746570)

          Uh huh, let me tell you a little story bud. my mom did her civic duty, even used up her vacation time to sit on a jury. Afterward she came in looking like a ghost and said "NEVER take a jury trial EVER! ALWAYS take a judge!" when I asked her what happened here is what I was told:

          It was a simple arson case which frankly never should have been brought to trial. The investigator admitted under oath he didn't know WHAT had started the fire, couldn't even say for sure it was arson, the guy had NO motive as he didn't even have enough insurance to cover the place and was gonna have to file bankruptcy and probably lose his home as well, yet the jury voted 11 to 1 to convict Why would they do that with no evidence? "Because he is Italian and Italians are in the mob and burn buildings. Haven't you seen Goodfellas?" That's right children, if my mom hadn't been on the jury that guy would be 10 to 20 thanks to a Joe Pesci performance.

          So the accused guy had a small chance because your mum was in the jury, whereas if it was just a judge he would presumably have had no chance at all.

          I can't picture a judge letting a prosecution get to court and then deciding there was insufficient evidence to convict.

      • You find that some really smart people sit on juries. Not every jury, not all the time, but it isn't some kind of "dummies only" thing. Heck, look at the Terry Childs case. There was a CCIE on his jury. Not only does that mean a very smart person (it is hard as hell to get) it is an education and experience right on point of the trial.

        Actually, when you do a little lookin' you find out that blue collar workers are often under represented. Why? Well jury duty pay is laughably low. It doesn't cover parking in

        • by number11 (129686)

          Also this idea that they weed out anyone with the slightest problem (or intelligence) is bunk. For extremely important cases, jurors get vetted pretty hard and there are a lot of challenges allowed by lawyers on both sides. For normal cases? Has to be a pretty good reason or the judge won't accept a challenge.

          Maybe it's different where you are. Last time I was in a jury pool, the two cases I was assigned were a bar assault, and a shoplifting case. You wouldn't call either "extremely important", except may

      • by Cow Jones (615566)

        Weaseling out of things is important to learn. It's what separates us from the animals (except the weasel).

    • by elrous0 (869638) *

      I don't even understand what the Justice Department is suggesting here. Are they saying that any lawsuit involving a patent should immediately be ruled for in favor of the plaintiff??? That's fucking insane.

  • by blair1q (305137) on Monday March 21, 2011 @08:28PM (#35566952) Journal

    There's no agency in government that should be accorded the singular privilege of not having to be second-guessed by a jury.

    • by mordors9 (665662) on Monday March 21, 2011 @08:32PM (#35566990)
      It's a brave new world.
    • by Dunbal (464142) *
      Have we gotten to "Four legs good, two legs better" yet?
    • by mangu (126918) on Monday March 21, 2011 @08:39PM (#35567046)

      TFA says "The amicus brief from the U.S. solicitor general says that the USPTO can be trusted to be the expert, over a jury".

      I had always thought the correct procedure was for experts from both sides to present their opinions in court and let the jury sort it out. It seems that the US government now believes their experts are above juries, courts, and all that shit.

      What matters to them is that "the preponderance standard would diminish the expected value of patents." Raising the expected value of everything seems to be the golden rule today. I have an absolute right to all the profit I expect. Sigh...

      • by blair1q (305137) on Monday March 21, 2011 @08:46PM (#35567114) Journal

        What he's saying, in reality, is that he thinks the preponderance standard does not make correct decisions. Which means he questions the validity of all civil litigation.

        What the fuck is someone with that attitude doing arguing this nation's business before the Supreme Court?

        • by h4rr4r (612664) on Monday March 21, 2011 @08:54PM (#35567192)

          Speaking truthfully?

          I was not aware one had to agree with something to be well versed in it.

        • What he's saying, in reality, is that he thinks the preponderance standard does not make correct decisions. Which means he questions the validity of all civil litigation.

          No, what he's saying, in reality, is that he thinks the proper standard here is the clear and convincing error standard. We can argue over that's right or not, but let's not go off into insane hyperbole and debate whether the solicitor general is unqualified.

      • It seems that the US government now believes their experts are above juries, courts, and all that shit.

        You nailed it. Included in "all that shit" would be those complete unqualified to be of, by or for the government: "the people".

        • by bryguy5 (512759)
          Lets hope these new middle east democracies get there act together in time to help liberate us from our rulers that are tired of all the problems with juries, and elections
    • by 517714 (762276) on Monday March 21, 2011 @09:04PM (#35567276)
      I suspect that is one amicus brief that won't have any traction. Imagine trying to convince a court that a Federal agency should have final say instead of a court.
      • I suspect that is one amicus brief that won't have any traction. Imagine trying to convince a court that a Federal agency should have final say instead of a court.

        It's not the final say. The position of the government is that the USPTO creates a presumption of validity in the patent that can be overturned by a court if there's "clear and convincing error". Microsoft's position is that that standard is far too high, and it should be overturned if there's merely a "preponderance of the evidence."

        And no, in this, the government's brief will have a lot of traction. Imagine trying to convince a court that a Federal Agency, enacted by Congress and one of the few expressly

        • by 517714 (762276)

          You have confused the court's reaction to the brief with their ruling on other matters. What the Solicitor General said is not the position of the government, it is the position of the executive branch. The position of the government will only be known when the court rules.

          The court may wish to reduce their involvement, but they cannot eliminate it because if someone violates the law, it falls under Article III,Section 2 of the Constitution "The Trial of all Crimes, except in Cases of Impeachment, shall

          • You have confused the court's reaction to the brief with their ruling on other matters.

            What? When did I say anything about that? See, this is why we have that "quote parent" button.

            What the Solicitor General said is not the position of the government, it is the position of the executive branch. The position of the government will only be known when the court rules.

            Uh, yeah. That's why we're talking about the likely reaction. Y'know, like you did two posts previously.

            The court may wish to reduce their involvement, but they cannot eliminate it because if someone violates the law, it falls under Article III,Section 2 of the Constitution "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed." Trials go to court.

            Of course trials go to court. We're arguing about the burn of proof necessary in that trial.

            ... wait a second... Maybe you aren't. Going back to your prior post:

            I suspect that is one amicus brief that won't have any traction. Imagine trying to convince a court that a Federal agency should have final say instead of a court.

            Are you suggesting that the solicitor general's brief is saying that the court shouldn't have the final say, and that patent validity should be out of t

    • by ffflala (793437) on Monday March 21, 2011 @09:24PM (#35567420)

      There's no agency in government that should be accorded the singular privilege of not having to be second-guessed by a jury.

      True enough, but despite the article's paraphrasing that's not what the brief from the Solicitor General actually says. The brief says that juries can screw up, and that lowering the standard needed to get claims like this to a jury will create disincentives to both inventing and patenting inventions.

      "The clear-and-convincing-evidence standard also furthers the reliance interests created by a patent grant by affording the patent holder enhanced protection against an erroneous jury finding of invalidity. By allowing a lay jury to second-guess the PTO's judgment even in close cases, the preponderance standard would diminish the expected value of patents and would reduce future inventors' incentives to innovate and to disclose their inventions to the public."

      • With the preponderance standard, at least on paper, a jury is just as likely to screw up on invalidating a valid patent as it is to screw up in upholding an invalid patent, making it a 'fair' standard. Clear and convincing being needed for invalidation means that the bias is in favor of the patent holder. It doesn't make sense to me for courts to uphold patents that appear to be more likely to be invalid than valid, which is all that will be protected by a C&C standard.
        • With the preponderance standard, at least on paper, a jury is just as likely to screw up on invalidating a valid patent as it is to screw up in upholding an invalid patent, making it a 'fair' standard.

          How is it fair to take to take property from two people, when one of them has a legal right to it? How is it fair to throw two people in jail, one of whom is innocent? How is any standard that is "just as likely to screw up" with a false positive as a false negative is fair?

          Clear and convincing being needed for invalidation means that the bias is in favor of the patent holder. It doesn't make sense to me for courts to uphold patents that appear to be more likely to be invalid than valid, which is all that will be protected by a C&C standard.

          No, it makes plenty sense if we don't have a mere registration system. In some other countries where there is no patent office that does substantive examination, you merely register your idea - they put a date stamp on it and throw it i

          • How is it fair to take to take property from two people, when one of them has a legal right to it? How is it fair to throw two people in jail, one of whom is innocent? How is any standard that is "just as likely to screw up" with a false positive as a false negative is fair?

            There are two potential mistakes being made. The first mistake is a an invalid patent being upheld, and thus an innocent party ends up paying. The second mistake is a valid patent being invalidated, and thus the inventor may have wast

            • How is it fair to take to take property from two people, when one of them has a legal right to it? How is it fair to throw two people in jail, one of whom is innocent? How is any standard that is "just as likely to screw up" with a false positive as a false negative is fair?

              There are two potential mistakes being made. The first mistake is a an invalid patent being upheld, and thus an innocent party ends up paying. The second mistake is a valid patent being invalidated, and thus the inventor may have wasted time and money. If I had to say which is a worse mistake, I'd go with the former, so patent holders are getting off lucky with 50/50.

              Your personal bias is showing through. The first mistake is an invalid patent being upheld, and thus an innocent party ends up paying. The second mistake is a valid patent being invalidated, and thus an innocent inventor ends up losing time, money, and their property. In both cases, someone innocent is harmed. The difference, however, is that the inventor has already been harmed, since they had to spend that time and money to acquire the property. The other innocent party hasn't lost anything.

              So, if I had

              • The difference, however, is that the inventor has already been harmed, since they had to spend that time and money to acquire the property. The other innocent party hasn't lost anything.

                They didn't have to do anything. You can invent something and not even try to get a patent on it. The time and money the inventor chose to spend on getting a patent was spent because they chose to spend it.

                Why just 50%? It's been gone over by experts who have spent years in a back and forth over whether it's valid before

                • The difference, however, is that the inventor has already been harmed, since they had to spend that time and money to acquire the property. The other innocent party hasn't lost anything.

                  They didn't have to do anything. You can invent something and not even try to get a patent on it. The time and money the inventor chose to spend on getting a patent was spent because they chose to spend it.

                  I'm sorry - this is an article about patent infringement. If your argument is "there doesn't have to be a patent in the first place," then you're in the wrong article.

                  • You seem to be suggesting that because the inventor chose to spend time and money already, they should be getting preferential treatment. However, the time and money they spent was entirely their own choice.
                    • You seem to be suggesting that because the inventor chose to spend time and money already, they should be getting preferential treatment. However, the time and money they spent was entirely their own choice.

                      ... and was spent in reliance on the patent law system working the way it has for the past 220 years, with a presumption of validity. If you think it's right for the courts to say "here, spend your money and you can have all of these rights... okay, has the check cleared yet? Great, we're taking all of your rights away," then we can have that discussion.

                      If, instead, your answer is "the inventor never had to attempt to acquire those rights he was promised," then that's a discussion for an entirely different

                    • I don't think it's right for the patents to be upheld when it appears more likely than not that it's invalid. That's what has to be shown under preponderance, that the patent being invalid is more likely than the patent being valid. If your patent isn't already on shaky ground, it's probably not a real concern for you.
    • by sconeu (64226) on Monday March 21, 2011 @09:25PM (#35567432) Homepage Journal

      Great.

      So the PTO issues all patents and says, "Let the courts sort it out."

      The Solicitor General says, "Don't let the courts sort it out."

      I hope that MS kicks the us.gov's ass on this one, and I am no MS fan.

  • by olsmeister (1488789) on Monday March 21, 2011 @08:30PM (#35566970)
    the lawyers.
    • Sometimes I feel I should just go ahead and start studying law simply because there seems to be ever-increasing need for lawyers. I mean, I would NEVER run out of work!

      • by gandhi_2 (1108023)

        demand != need

        • demand != need

          If you wish to nitpick, then sure, let's do so: it depends on your viewpoint. For example from the viewpoint of large, international corporations it is indeed verily a need: they _need_ to please their share-holders, they _need_ to be able to protect themselves against other companies who are hoarding lawyers and just waiting for a time to strike, they _need_ a sizeable set of lawyers from many different fields of expertise in order to actually be able to do all that and so on. One could also argue that the

          • by ArsonSmith (13997)

            There is no such thing as a need, only wants. Sometimes in order to satisfy a want there are dependence that you may refer to as a need, but at the core it is always a want.

  • An i 4 an i... as they say
  • ...which usually means I'm wrong, anyway, but didn't i4i have a specific and very valid claim to a patent here?

    Software patents are bad, no doubt, and we're seeing a horrible precedent set, but wasn't the specifics behind their use of XML in documents legitimately infringed by Microsoft?

    I'm torn here. First, I really don't like the idea of being sued over code I may write.

    HOWEVER, I do like the idea of suing any bastard who's masochistic enough to implement XML the way Microsoft did in their office suite.

    • I meant, sadistic, however, having to write, test and verify that code works is self flagellation at some level.

    • Re: (Score:3, Informative)

      by astrodoom (1396409)
      The patent is essentially over a mapping of architecture and content of a document in XML. It describes using a mapping scheme to map the two together thus separating them from being stored solely in the document. It's essentially a patent that describes nothing whatsoever beyond storing information about a document performing a particular form of hashing. Shouldn't be a patent.
      • by Ant P. (974313)

        Doesn't that description also fit XSLT/XSL-FO, which have been around probably as long as XML has? Or is this a patent for doing it using a computer?

    • by phantomfive (622387) on Monday March 21, 2011 @10:20PM (#35567794) Journal
      There is a link to the patent here [google.com]. It was filed in 1994, and thus predates the existence of XML, but not SGML. Of course, to understand any patent, you have to look at the independent claims, and I think the following is probably the claim that most applies to Microsoft word:

      20. A method for producing form a document made up of metacodes and content, a map of metacodes and their addresses of use in association with mapped content of the document and stored in distinct map storage means, the method comprising:
      (a)reading the content of the document until a metacode is found;
      (b)copying the content and storing the copied content in a mapped content storage;
      (c)noting in the map the found metacode and its position in the content; (d)repeating the process of (a)-(c) until the entire document has been processed; and then (e)providing the document as the content of the document separately from the metacode map of the document.

      It seems pretty clear that this applies to Microsoft word, and essentially anything else that stores documents as XML. Note that the patent actually uses xml shaped tags in its example section (not sure how they thought they were being original, since they clearly copied it from SGML).

      In any case, this is important because it is a clear issue of patents stifling innovation, which means it will take longer to invent cool stuff. If you like cool stuff to be invented, you want this patent to be invalidated (and really, it doesn't hurt Microsoft all that much, they just have to remove the XML from Word).

      • and really, it doesn't hurt Microsoft all that much, they just have to remove the XML from Word

        Careful what you ask for - ODF is XML too, and Word supports it today... tomorrow it depends on the outcome, I guess.

        • Ya, and depending on the definition of 'document,' this could affect a LOT of people. In fact it's hard to think of what kind of document it doesn't cover, excluding straight text (and possibly CSV).

          The only bright side, if the patent is upheld, is it might encourage congress to take on patent reform (but I wouldn't expect that to happen before 5 years, based on how long it typically takes for problems to get resolved by congress).
        • by makomk (752139)

          Careful what you ask for - ODF is XML too, and Word supports it today... tomorrow it depends on the outcome, I guess.

          ODF is protected by decades of SGML-related prior art. Microsoft tried to get a patent that would actually cover all XML-based document formats and failed for exactly this reason. OOXML doesn't have the same level of protection due to a number of deliberate decisions by Microsoft; in particular, the reason they're getting sued by i4i is that one of their features is a carefully-crafted and knowing clone of i4i's main product. Even with that feature removed, it's still less safe against patents than ODF thou

  • for Microsoft's corporate philosophy.
  • As sad as it is, I would rather the govenment just pump huge amounts of money into patent office so that they can hire lots of good lawyers to stop bad patents before they exist. I mean we have to pay for all these lawyers anyway everytime we buy a product, as well as receiving less competitve products. We might as well just simplify the system by moving all the lawyers into the patent offices, then at least products don't suffer.
  • by Opportunist (166417) on Tuesday March 22, 2011 @12:57AM (#35568672)

    If 12 people "of virtues true" are good enough to decide over life and death of a person, they are more than capable to decide over some insignificant patents.

  • What is the world coming to? MS on the right side of a legal debate? Or is it more about avoiding to reap what they sowed? I'm all confused here :-).

  • "... representing more than 100 companies, organizations and individuals, including venture capitalists, individuals from the military and now, the government." vs. "... Electronic Frontier Foundation and 37 law and economics professors". Capitalists, military and the government vs. the EFF and 37 law and economics professors. Who could win this one? I take 50 to 5 for the guys with the money.

  • Is it still the responsibility of the patent office to determine obviousness and search for prior art? I am certain it used to be. But I recall some quote, within the past decade or so, where the head of the patent office stated that these things were not their responsibility. Am I remembering this correctly? Can anyone find such a quote?

Memory fault -- brain fried

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