EFF, Apache Side With Microsoft In i4i Patent Case 83
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."
EFF (Score:5, Funny)
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I saw the Electric Frontier Foundation play at Madison Square Garden in 71'.
Man what a groove fest baby
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It was Dyn-O-Mite!
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Brought to you by Frobozz Electric!
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You can side against patents. Software patents are especially onerous. But Microsoft just finished filing suit against others over patents. And in the i4i case Microsoft did steal and did so knowingly. This process that Microsoft used against i4i is exactly what they have been doing for the past 20 years--taking other companies ideas and incorporating them into their products, normally in hopes of killing the other company.
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Actually, not quite accurate. From the EFF link:
In this case, Microsoft had indeed argued that i4i's patent was invalid because the disclosed invention had been embodied in a software product sold in the United States more than a year before the patent application was filed prior art that the patent examiner did not consider.
so, as Microsoft is asserting, they did not steal the invention from i4i, but from someone else a year before who did not have a patent.
Damn hippies... (Score:1, Troll)
Re:Damn hippies... (Score:4, Interesting)
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... (Score:4, Informative)
I think Microsoft and the rest of the software companies have realized that patent-trolls do more harm than good.
I call bullshit [slashdot.org].
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It's interesting to notice M$ is suing Motorola instead of Google.
This is patent troll behaviour if I ever saw one: why sue ONE if you sue many and make a lot of money, erm, licensing agreements?
This must be some quite weird long term strategy from EFF, one I cannot even understand...
Re:Damn hippies... (Score:4, Interesting)
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.
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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.
Why? By that logic a sound business strategy would be to develop a product based on patented technology and just sell it to people that include it in their products so they're the ones that get sued.
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That's not a contradiction. For instance, that's the exact behaviour you'd expect of a person who ranked three hypothetical conditions like this:
1. Nobody can be a patent troll.
2. Everybody can be a patent troll.
3. Everybody, except you, can be a patent troll.
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Re:Damn hippies... (Score:5, Interesting)
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.
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Microsoft sued HTC before and got a settlement. They're trolling [google.com]. These lawsuits are nothing more than advertising for their Windows Phone 7 phone, which offers indemnification against lawsuits from... them [google.com]. "That's a nice phone you got there. It would be a shame if anybody sued you over it."
Microsoft is suing their own customers here, and not retail customers, but billion-dollar manufacturing partners. That's not a good plan. SCO tried that plan and even with the Microsoft-backed investments from un [groklaw.net]
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They're trolling [google.com].
What's your definition of 'trolling' in this context?
Trolling (Score:1)
The action is not a direct dialog with the respondent and it has no hope of success with the target. It's an action to elicit motion from an outside audience. They're not trolling Moto here, they're trolling everybody else. If Microsoft gets other licensees for their IP, or some traction with WP7, the bait is took. Maybe "Chumming" is a better word than trolling, but trolling is a better understood symbol.
Microsoft has no hope of successfully suing Motorola over cellular software patents. They have to
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Selling software is the easy money, support contracts are relatively hard work in comparison.
With software you can produce more copies extremely easy, especially if your just sending out license codes rather than physical media. You have virtually infinite scalability without increasing costs, thus you can reap massive profits. Also above a certain threshold, the development cost of software becomes covered and the ongoing costs are so trivial that its effectively a 100% profit margin.
Support contracts on t
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Does anyone else think that MS doesn't have a coherent legal strategy? I mean yesterday they sued ITC for patents that they claim Android violates. The patents in that case look pretty general and weak to me. With this brief they are essentially asking for the barrier to invalidate patents to be lowered. If the appeals court agrees with them then they made it much harder on themselves with the ITC case. Opposing counsel will generate bring to the court's attention when you've made their arguments for t
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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 e
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Well, here is the problem. Not really a problem but... You are looking at this logically from a right and wrong perspective. Don't do that just for a minute or two. Look at is specifically from a monetary gain perspective with most logic thrown out the window.
You see, MS most certainly can argue against itself in two unrelated cases covering the same areas of sorts. It's not likely that the differences in arguments will ever cross cases until one has been decided and that's only if they aren't past the poin
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You see, MS most certainly can argue against itself in two unrelated cases covering the same areas of sorts. It's not likely that the differences in arguments will ever cross cases until one has been decided and that's only if they aren't past the point of offering evidence (the one court will just use the ruling of the other without caring about how what was argued)
Normally when it is brought up in court, the party that has argued against itself will clarify why each case is different and why their arguments make sense in each case. But unfortunately for MS, the appeals case is arguing for a broad lowering of standards of patents. The specific ITC case falls under the broad appeal. In recent history, IBM and Novell routinely notified the respective courts when SCO argued against itself in different ongoing cases.
Now, here is where logic gets completely turned upside down. If MS can perceptibly make more revenue from windows 7 for phones sales because of the Fear, Uncertainty, and Disinformation, then if they would lose in either patent dispute either way the cases swing, for any reason, it's still beneficial to them. It's monetarily logical for them to throw a roman pretending to be a christian to the lions in order to pack the stadiums so to speak. What I'm getting at is, it doesn't matter if they lose both cases for any reason. The big money will be somewhere else which is most likely why they are dragging both cases out- it exemplifies their indemnification as a value greater then the costs of using windows 7 for the phone over a free and open platform or even a cheaper pay platform. the patent case is more or less the bread and circuses while the real action is going on inside the emperors hidden life.
If I were to win as Motorola, I would not only ask fo
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I agree. But I also think that some sort of outside suit could be taken against MS is this turns out to be true. It would seem to me that they
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What you and everyone else forgets (including the EFF) is that this "preponderance of the evidence" will work both ways. In the end the people with the money will win the patent suits because they can bring more and bigger guns to the table. At least with "clear and convincing" the little guy has a chance--to defend against a criminal monopoly such as Microsoft that has a habit (shown over the past 20 years) that they'll steal anyone else's work and dare you to defend yourself in court.
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It is not. But when suits fly to and from those proposing this sort of change then certainly they have ideas beyond what you think the benefit is. This will make it easier for Microsoft to sue other, believe it or not, because they have more money. In cases where preponderance of evidence comes into play it is historically the money side that wins.
Careful what you (the metaphorical) wish for... (Score:2)
Taking something to the US Supreme Court is a big-assed wager.
Sometimes, you get what you want - say, software patents being invalidated (or at least weakened to the point of near-uselessness). This would be a very good thing.
However - any outcome other than what you desired will either make it im-fucking-possible to change later. For instance, a bad outcome would be for software patents to not only get validated, but strengthened to the point where any patent holder (no matter how specious the patent), can
Re:Careful what you (the metaphorical) wish for... (Score:5, Insightful)
However - any outcome other than what you desired will either make it im-fucking-possible to change later. For instance, a bad outcome would be for software patents to not only get validated, but strengthened to the point where any patent holder (no matter how specious the patent), can promptly send any company they want straight into fiscal hell. Like today, only 10x as worse.
I don't think you understand the procedural posture of this case. This is a (potential) Supreme Court case, which means the case will be about the narrow issue framed by the appeal and grant of certiorari. It is not about software patents per se. It's about the standard of proof of invalidity in all patent cases, specifically the standard for prior art not considered by the Patent Office.
Here, Microsoft is asking for the standard to be lowered. i4i will likely ask for the Court to maintain the status quo. In all likelihood, if the Court wants to maintain the status quo then it will simply deny certiorari and let the lower court decision stand. There is almost no chance that the Court will raise the standard beyond the existing clear and convincing standard. This is for several reasons, not least because there isn't really any standard above C&C but below the criminal standard of beyond a reasonable doubt, and it's highly unlikely the Court would create a new standard just for patent validity.
There's really no downside to supporting Microsoft here if you want patents to be easier to invalidate, especially because you know Microsoft will put substantial resources behind making sure it puts its best foot forward. For one thing, if it loses it will have to pay a $240 million judgment. That's a pretty big incentive.
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An amicus brief isn't simply a piece of paper that says "we think these guys should win." It's an exposition of a party's legal reasoning. In this instance, the EFF certainly has an interest in the precedent set by this case---assuming cert is granted. The justices read those things. So assuming they take the case, it's important that the EFF's position be articulated.
As another poster said, there's virtually no chance that SCOTUS will take the position that the standard of proof should be raised. Even if t
Microsoft and EFF together? (Score:3, Funny)
It's the end of days!
The enemy of my enemy... (Score:1)
No. Rule 29: (Score:4, Insightful)
Re:The enemy of my enemy... (Score:5, Funny)
Submitter's implication is unsupported (Score:3, Insightful)
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.
Msmoriarty makes a logical leap here without providing any supporting evidence. Of course Microsoft defends its patents - given the current legal landscape, any business that doesn't do so is just plain stupid. It doesn't matter what they think the law should be; they have to behave according to how the law currently exists.
The general principle is somewhat similar to how Apple sold DRM-encumbered music files for a while, even while publicly advocating for the end of DRM. Of course in that case it wasn't a matter of law; it was a matter of the existing policies at the companies who held the rights to the music. Apple did what it had to do from a business perspective even though it wanted the circumstances changed.
Note that this doesn't prove that Microsoft believes patent law needs to be changed, either. We don't really know either way, and for msmoriarty to assume otherwise is without basis. Unless Microsoft makes a public declaration one way or the other, this simply amounts to a legal tactic - nothing more.
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While I agree with what you are saying about Microsoft, the idea that Apple was "forced" to include DRM was laughable. If Apple refused to include DRM-ed songs in iTunes what would the record companies do?
Not license their music to Apple?
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If Apple refused to include DRM-ed songs in iTunes what would the record companies do?
My understanding, both at the time and now, is that they didn't have to do anything--they could simply not permit iTunes to sell their music. Because copyright law is already in place, iTunes could not, and cannot, sell anything that they don't have rights to.
In other words, Apple had to come to the record companies; the record companies don't have to go out of their way to do anything. All they had to do was say "no".
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The first online music store that agreed to sell DRM music would benefit, iTunes would never have taken off, and the record companies would be fine. Apple was able to turn the tables on the record companies when iTunes became a huge and dominant market for them.
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Funnily enough, music stores existed before iTunes. What would have happened is people would have continued to use their existing music stores, and iTunes never would have got off the ground. What really happened is that iPods shovelled iTunes usage, to the point that it reached critical mass and attained the weight necessary to force what Apple wanted. It never would have reached critical mass without the record labels agreeing to it.
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Look over your logic a little more carefully. iTunes had no real competitors because record companies refused to license the vast majority of their catalogs to anyone, let alone Apple.
When Apple started iTunes, they needed to co
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Still, you are right. Steve Jobs was a very canny businessman who realised that by providing the DRM, the record companies would licence to him, giving him a period of exclusi
Re:Submitter's implication is unsupported (Score:5, Insightful)
Note that this doesn't prove that Microsoft believes patent law needs to be changed, either. We don't really know either way, and for msmoriarty to assume otherwise is without basis. Unless Microsoft makes a public declaration one way or the other, this simply amounts to a legal tactic - nothing more.
An appeal to the Supreme Court is a public declaration. What's more, this has been Microsoft's position for years. For example, it tried the same approach when it was sued by z4 Technologies over anti-piracy measures in XP and Office (that case eventually settled).
Dismissing this as a 'legal tactic' is silly. Microsoft is asking for a nationally binding precedent from the highest court in the country, a court that does not like to overturn itself. If the Supreme Court indeed lowers the standard of proof, then that will likely be the law for decades (barring unlikely congressional action). In fact, making this claim in a Supreme Court proceeding is actually more indicative of Microsoft's beliefs than a press release because, unlike a press release, a Supreme Court ruling would actually change the law. There are no take-backs if Microsoft changes its mind.
Re:Submitter's implication is unsupported (Score:4, Insightful)
Msmoriarty makes a logical leap here without providing any supporting evidence. Of course Microsoft defends its patents - given the current legal landscape, any business that doesn't do so is just plain stupid. It doesn't matter what they think the law should be; they have to behave according to how the law currently exists.
I think you hit the nail on the head here. It may well be that calculations have definitely shown that Microsoft (and then I would also expect this to apply to other major players) would be better off, financially, with more lax patent rules, so that point gets argued. However, in the meantime, the same "maximize profit" rule is applied in the existing circumstances, leading to patent lawsuits. It's only a self-contradictory position if you believe that everyone's stance on software patents is guided by ideology. If it's strictly about money, it makes perfect sense.
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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
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Careful with that brief, Eugene (Score:4, Funny)
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So is the EFF filing an amicus curiae or an amicus diabolus brief?
That would be amicus diaboli.
/Latin & legal pedant
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Friend of Venus doesn't really have the same ring to it.
Lucifer doesn't mean devil, it means Venus (the planet) when seen in the morning. It literally means "light bringer". The greeks knew it as phosphoros.
The only place you'll find it in a bible (unless you have one of the lame post-KJV translations) is the book of Isaiah. Babylonian rulers (and Egyptian, and Sumerian, and...) tended to think of themselves as gods. So one that had held the jews captive in the old testament liked to refer to himself as
Re:Careful with that brief, Eugene (Score:4, Insightful)
Well, they're not playing devil's advocate. (http://en.wikipedia.org/wiki/Devil%27s_advocate).
The "devil's advocate" is a fascinating role: when Roman Catholics try to have someone declared a saint, it was the devil's advocate's role to oppose the practice. The office was abolished last century, and replaced with the "promoter of justice". It was an _embarassing_ job: discrediting miracles and casting doubts on the beliefs of devout people about their favorite potential saint is thankless work.
The results are predictable. Much like the patent office failing to challenge software patents, unless the flaws in the potential saint's proposal are obvious and profound, sainthood is now much more easily granted. The result has been an explosion in the number of new saints, from fewer than 100 in the first part of the 20th century to over 500 in the latter part.
Unfortunately, sort of genuinely skeptical agent is vital to certifying only valid saints, or patents. As Microsoft and EFF and the Apache Foundation are claiming, it's clearly not happening at the patent office. Perhaps the patent office could hire some Jesuits? They tended to provide devil's advocates, before the office was discarded, and people with experience being so "jesuitical" might do wonderful work scraping the legal clutter off of a patent application to expose, and discredit, invalid patents.
Wow - how times have changed (Score:2)
Fun times... (Score:1)
Although if I were Microsoft at this moment, I'd be paying the lawyers overtime to find out why EFF thinks overturning this patent ruling is a good thing. Last I heard EFF wasn't too big on patents and they're not altogether retarded, so... anyway, if I were a Microsoft lawyer I'd be worried enough to make sure I knew where all the chairs were...
Re:Fun times... (Score:5, Informative)
Why pay the lawyers when you can just read the brief & they tell you? EFF thinks overturning the ruling because the ruling is based on "Clear and Convincing" evidence. In other words, a patent is given the same weight as a previous legal ruling - even though nobody is allowed to argue against the patent before it's issued.
First off you don't come in on an equal footing - patents are assumed to be valid. Next, the level of proof required to set aside a patent is higher than in any other form of IP case. The only other time I can find "Clear and Convincing" as the standard is when the court is stripping someone of their parental rights.
Between the 2 of them, it makes it almost impossible to invalidate a patent. When the standard was set, the Patent office was:
At that time, the standard made sense. Under the current process, where an intern with a chemistry degree is approving software patents, it no longer does. Currently, a patent clerk has less than 4 hours to determine if a patent application should be approved or not. Examine some of these patents -- many are upwards of 200 pages of legalese. Nobody can accurately determine the validity of a patent that complex in a few hours - and yet they are given the presumption of validity going in.
Re:Fun times... (Score:5, Interesting)
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.
The first thing that came to my mind was the KKK (Score:4, Insightful)
Being defended by the ACLU. Sure, it's even more involvement from two completely disparate allies but it struck me as truthful. Sometimes you end up making alliances with your next to worst enemy, so you can make the world more free for us all.
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Amen, man. I'm a first year law student. NOBODY says they want to be a criminal defense attorney.
Every time we hear a speaker talking about a criminal case, they say the same thing: "Well, I didn't want to be a criminal defense attorney, but then..."
Kinda funny how jaded class can make a person, even only 7 weeks in.
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Defending your principles though it benefits your enemies, is in my opinion highly admirable.
If you don't defend your principles unto death (or similar) they aren't principles, they're just things you think are good ideas.
Why is this wrong? (Score:2)
The Free Software community is not the Anti-Microsoft club; it is the Anti-Stupid-Restrictions club. If Microsoft is fighting a stupid patent, they deserve support, no matter how deliciously karmic it is.
The question here... (Score:1)
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Lowering the bar is all this appeal to the Supreme Court is about. it would be unrealistic to expect more.
Getting rid of software patents (or all patents) is a matter for Congress. It might also require the USA to withdraw from some international agreements.
So basically... (Score:1)
Diff. between i4i case and other patent trolls (Score:1, Insightful)
There are some differences with this case compared to a basic patent troll case.
First off, i4i actually had a product that was shipping, though in a targeted market. A patent troll is an organization that collects patents for the sole purpose of suing other organizations. The lawsuits themselves become the revenue model.
Second off, i4i tried to work with MS for a period of time prior to MS breaking off communications with i4i and building their own system. This makes this whole thing a little more than a ba