Start-up Granted Injunction Against Microsoft

AustinSlacker writes " A San Jose, CA start-up, Alacritech Inc, was granted a preliminary injunction against Microsoft in a patent infringement lawsuit involving several patents related to Microsoft's implementation of "Chimney" TCP offload architecture."

Comments

Watch out Microsoft

[TimeTraveler1884]

FTA:

"Microsoft rejected licensing terms that would be acceptable to us. We were forced to sue Microsoft to stop them from continuing to infringe, and inducing others to infringe, on our intellectual property rights. We are very pleased with the Court?s decision in this matter."

What goes around comes around I say. While by no means I think everyone suing everyone is a good thing, it's refreshing to see that someone is taking on Microsoft for a change.

What is unclear to me though, is if Alacritech really the first to use this technology. They don't explicitly say this in the article. The closest thing to indicate that Microsoft tried to steal their technology is the following time line:

* 10/97--Alacritech files first provisional U.S. Patent application 60/061,809 on SLIC Technology
* 09/98--Alacritech meets with Microsoft and describes patent-pending Dynamic TCP Offload architecture in detail under a non-disclosure agreement
* 04/99--At Microsoft?s request, Alacritech delivers?detailed architecture document for integrating Alacritech SLIC Technology into Windows
* 06/99--Microsoft ceases further communications with Alacritech?and subsequently proceeds to use Alacritech SLIC Technology without a license
* 04/00--Alacritech ships first products based on SLIC Technology
* 05/01--First Alacritech patent on SLIC Technology, U.S. Patent No. 6,226,680 issued
* 07/02--Alacritech U.S. Patent No. 6,427,171 issued

According to this, Microsoft met with them, asked them for the architecture details, the ceased contact 2 months later. Interesting.

Re:Watch out Microsoft

[winkydink]

According to this, Microsoft met with them, asked them for the architecture details, the ceased contact 2 months later. Interesting.

As dubious as it sounds, it can also be a matter of, after looking at it indetail, they discovered that there was nothing special about it.

Re:Watch out Microsoft

[klui]

I suppose it can also be the case where it's not obvious until somebody shows you and then... "of course... a child could do it."

Re:Watch out Microsoft

[The Bungi]

What goes around comes around I say.

If you'd like to show us an example of Microsoft using patents this way *against* other companies, I'm all ears (or eyes).

Much like IBM, Microsoft's patent portfolio is supposed to be defensive in nature. Again, if you have proof to the contrary I'd like to see it.

OTOH, if these people's claims are truthful and this is another STAC case, then Microsoft should definitely be shafted, as I would expect anyone else to be.

Re:Watch out Microsoft

[bill_mcgonigle]

Interesting

Hardly, unfortunately. It's the same thing they did with Burst with whom they just settled for a paltry $60M. This is becoming modus operandi for Microsoft.

It will be interesting to see if Microsoft destroyed evidence in this case as well.

Re:Watch out Microsoft

[linuxtelephony]

This is hardly "becoming" MO for Microsoft -- this HAS BEEN SOP for Microsoft for years. It's a practice that is, and has been, repeated numerous times by Microsoft, and reported on as well.

The problem, is that it is cheaper for MS to continue with this practice, as well as paying off the settlements they end up having to pay, and to keep making money by selling these products.

Just like it was (a while back) cheaper for MS to pay fines and keep violating a ruling or law (and pocketing money from sales) than complying.

Re:Watch out Microsoft

[Stephen Samuel]

From the looks of things, this appears to be (at least partially) a hardware patent with software aspects to it. (which is quite different than a pure software patent).

In any event, even if the work wasn't patented, it would have been subject to trade secret complaints (if you accept Alacritech's version of the story)

So Microsoft is stealing someone else's Intellectual Property... Why aren't I shocked? I'm expecting that they figured that they'd get away with 4-5 years of slogging it thru a court before they had to face the fact that they were wilfully infringing a patent (by which time the company would have probably been defunct).

I think that companies are learning to expect this from Microsoft.

Re:Watch out Microsoft

[ImaLamer]

like a/the gui?

Re:Watch out Microsoft

[Trepalium]

While it wasn't a company, Microsoft did send the developer of VirtualDub a nastygram telling him to remove the ASF support from his program because they had a patent on it. If he did not, they warned that they would file against him. He, of course, caved into their pressure.

Re:Watch out Microsoft

[Austerity Empowers]

Or there was nothing there. I can't count how many start ups I've worked with that have shown me slideware of "patent pending" technology that was not implemented, not thought through or otherwise junk. Obviously if I'm looking to buy enough to sit through a meeting or sign an NDA, I understand what's needed and want someone to deliver. After said company then asks for an outrageous sum for their technology (usually a sum that equals or exceeds the cost for us to develop on our own) we'll tell them to shove it and develop it ourselves.

I've never had (or wanted) to work for Microsoft, so no one has ever haunted me, but I can probably see where microsoft may just be victim of the patent system they themselves are abusing.

That's even better than the david vs. goliath theme.

Re:Watch out Microsoft

[Johnny Mnemonic]

The more big companies, like Microsoft, are getting screwed over by bullshit software patents ... the more likely they will push for patent reform.

While I agree with this sentiment, it is more likely that any reform that happens will protect the position of big companies, but impair the ability of smaller companies to protect their patents.

For instance, Microsoft could well lobby for "loser pays litigation costs" when patents are litigated. Such legislation would reward the big companies with large war chests, and make it hard for smaller companies to prosecute their cases.

Be careful of what you wish for, is all that I'm saying.

Re:Watch out Microsoft

[Anonymous Coward]

Wow -1 Flaimbate. No surprise though since slashdot is not about the truth. The only thing I can find fault with is the last line. I don't know anybody who claims they are using GPLed code but there are people who claim that they are using free software but under a licence. This of course isn't illegal since the copyright licence allows it. The only reason why people are pissed about that is because "why should M$ get to use our code but we can't use theirs" sort of thing. I'm not saying that thy have no right to be pissed. They do since M$ has tried to slow the growth of Linux and Open Source yet supposedly (I have seen no proof but there have been claims) takes open source code. However what they are doing is still legal as I have never heard of or seen any proof for them using code under the GPL or other simular licence. If the Open Source community is ever going to make it big they are gonna have to learn to take some criticism.

In truth the only thing I think Microsoft has ever done to the Open source community is 1)their a monopoly, 2)they copy alot of the ideas(from Mac too), 3)They go out of there way to insult or put Linux down. Its the same thing in every industry though and some people need to grow up. Thats why I am greatful that Linus is still in charge of Linux since he has a great understanding of the economy and something called common sense. Common sense of course is a rare thing in the Open Source Community and I think the community would be better if more people had it. I fear the day that Linus and a few others are no longer in charge.

Re:Watch out Microsoft

[back_pages]

The more big companies, like Microsoft, are getting screwed over by bullshit software patents (instead of just using them to screw others over) the more likely they will push for patent reform.

Just for argument's sake, what are you going to say if Microsoft loses the suit, exhausts the appeals process, and pays the damages saying, "Yeah, you caught us fair and square. Win some, lose some."

It's only reasonable to expect Microsoft to fight an infringement suit tooth and nail. I'm afraid I don't see how this directly implies that they're going to push for patent reform. Even if I buy that bit of speculation, the greater gap is that Microsoft would lobby for a positive and fair patent reform.

Anyway, I'm just tossing in my two cents, but I don't see how this rationalization can reasonably support patent suits against Microsoft but denounce software patents in general.

Re:Watch out Microsoft

[Jason Earl]

Exactly. Eolas can sue Microsoft for using its patented "browser plugin" technology and be awared half a billion dollars. That simply isn't going to happen if you sue the Mozilla Foundation.

Microsoft (and IBM) were planning on using patents to keep the riff-raff out of the software development business. After all, only the biggest and wealthiest software development firms could afford to cross license the patents that they needed to actually accomplish anything. Unfortunately this plan worked all to well. Now the small software firms are even bothering to write software. Instead they simply patent technologies that Microsoft or Big Blue are going to need in the future, wait until their IP gets wrapped up in the next release of an important software package and sue. In a very ironic twist only those software companies that are too small to be noticed by the patent vultures can safely develop software these days (and that includes basically all Free Software projects).

This is why Microsoft and IBM are starting to make noise about patent reform. These companies are finally realizing that under the present system they are very big targets.

Patent Infringment spiderweb

[Bananatree3]

When will we finally settle all these Intelectual Property suits? My guess is probably never. Along the same lines, how could the USPO allow Microsoft to patent something that was already patented? This is screwy...

Is Alacritch Inc, really a startup?

[mcguyver]

Alacritch Inc was founded in 1997. Google was founded in 1998. This is a david-vs-goliath story but certainly not on the scale that this article makes you believe...then again Alacritch did go through three rounds of funding for a total of only $35M.

Re:I'm starting to see the software patent problem

[bonch]

Wikipedia even has an entry on the software patent debate.

The amusing section is the list of quotes for and against software patents, both lead by a Gates quote:

Quotes supporting patentability

Bill Gates (Microsoft) 2005
"...There are some new modern-day sort of communists who want to get rid of the incentive for musicians and moviemakers and software makers under various guises. They don't think that those incentives should exist... I'd be the first to say that the patent system can always be tuned...the United States has led...because we've had the best intellectual-property system."

Quotes against patentability

Bill Gates (Microsoft) 1991
Internal memo
"If people had understood how patents would be granted when most of today's ideas were invented and had taken out patents, the industry would be at a complete standstill today...The solution is patenting as much as we can. A future startup with no patents of its own will be forced to pay whatever price the giants choose to impose. That price might be high. Established companies have an interest in excluding future competitors."

Follow the money: Alacritech vs. Broadcom?

[Wesley Felter]

Alacritech makes TCP offload engines (TOEs); so do several other companies. Notably, Broadcom has promised to commoditize TOE by including it in GigE controllers "for free". If this happens, Alacritech is out of business. These Broadcom TOEs rely on the Windows TCP Chimney API to work. If TCP Chimney has to be removed from Windows, then Alacritech is possibly the only TOE company left standing.

Re:We are

[dillon_rinker]

I find it particularly amusing that the patent holder is under no obligation whatsoever to ensure that the terms are "agreeable" to whomever wants to license them.

EXACTLY.

So-called intellectual property is, in theory, a temporary monopoly granted for the sake of the public good. By granting the monopoly, the government provides economic incentives to creators. What, though, is the good to the public if the creators do not license their intellectual property?

I would propose mandatory licensing of ALL intellectual property under standard terms. No patent holder would then be able to withhold permission to incorporate patented technologies; nor could they demand outrageous payments for their patent. They could not keep technologies off the market solely to keep from cannibalizing their existing sales.

Record companies would be required to make ALL of the music they owned available to the public or risk losing their copyright. There would be no orphaned works; failure to provide access to a work would constitute abandonment of copyright and ensure that a work passed into the public domain.

The devil, of course, is in the details. What would the mandatory licensing terms be?

Re:We are

[symbolic]

Not the issue. How many patents does Microsoft hold? The distinction is important- the reason Microsoft hasn't initiated any patent suits (that we know of anyway), is because it hasn't needed to. Put the company in a position of financial stress, and you can bet they'll be looking at every possible way to take advantage of this massive portfolio.

Re:Good, but not for the obvious reason

[Shihar]

I can't speak for software patents, but I can speak for other patents. I work in a nanotechnology startup firm with a very hot product. We have grand total of 30 or so guys working in this company, all of which are very smart people. We only really do one thing, develop technology. We develop the basic idea of a new technology, work out the initial kinks, then sell it to another company for scale up operations. Patents are all we have. Take away our patents, and we would close up shop tomorrow and let the technology sit there stagnant.

What people don't realize is that often times the people that make the technology and the people that build the technology are two very different people. 30 guys can't run a semiconductor plant building enough memory to feed the global market. We can do all the R&D though. That means that we need to show our R&D to outsiders. We need to take our awesome idea, bring it to a company, and show them enough to convince them that we are not another crackpot startup. The only way to do this is to show them a lot... enough where they get a couple years leg up on reproducing what we have. The only thing that allows us to walk into companies and show them what we have is the protection of IP laws. Without those laws, we wouldn't be able to show off the technology, much less sell it.

It is this very reason why our company won't even contemplate doing business in Korea or Taiwan. IP is the only thing we have, and those nations are not exactly know for their respect of ownership of IP. IP laws are what keep our business in existence and in the US.

I am not a programmer, so I don't know how it works with software, but I wouldn't be surprised if something similar happens in that industry too. A small company develops an impressive bit of code, and the only way they can sell it is with the protection of IP to shield them while they show it off and sell it.

IP laws are not the bane of creativity. The patent system has more then a few flukes and shitty patents handed out, but it is without a doubt needed. Kill patents and you better get cozy with universities and massive corporations, because without IP laws entrepreneurs and risk taking startups are SOL.

Re:Think Twice ....

[foobsr]

Please be precise. You are talking about "Intellectual Property Rights", right? This then moves us quite fast into the regions of moral an ethics (glance at SCO here?). Keep in mind that these areas (at least ethics, morals is more difficult to categorize, room for another thesis) are normative (contrasted to maybe empiricist).

But please let me be ridiculous, there is not much else left to laugh about in this (my?) world.

CC.

Wow, My mind just went *ping*...

[pla]

While reading through the posts on this topic, I noticed the same patterns I always do, how patents for the most part seem to get granted at the drop of the hat, and both big and little players can use them to very carefully target and cripple the opposition.

But then I had a thought... We should FULLY, ABSOLUTELY support the granting of insanely over-broad patents for every trivial little thing any company can think to sue over.

Why, you might ask, would I suggest such a seemingly abhorrent idea?


Simple: Because, in 20 years, it means that we'll all have the current batch of insanity to point to and excuse our "infringement" of then-current patents with "see? I implemented that, now out of patent."

"Why yes, it would appear that I violated your patent on 3rd-harmonic quantum eigenreplication, but as you can see from this now-expired-and-thus-fair-game 2002 Microsoft patent, I did nothing more than implement their 3rd claim, which covers ''the use of numbers to do stuff''. So, if we can dispense with the debate over such highly-technical language, I'd like to move for dismissal."

Re:We are

[back_pages]

So-called intellectual property is, in theory, a temporary monopoly granted for the sake of the public good. By granting the monopoly, the government provides economic incentives to creators. What, though, is the good to the public if the creators do not license their intellectual property?

The answer to that question is the public disclosure of the technology and the implicit offer of a temporary monopoly to anyone who can improve that technology in a non-obvious way.

Regardless of whether or not you buy into it or like the answer, it is what it is.

I would propose mandatory licensing of ALL intellectual property under standard terms. No patent holder would then be able to withhold permission to incorporate patented technologies; nor could they demand outrageous payments for their patent. They could not keep technologies off the market solely to keep from cannibalizing their existing sales.

This has been done in times of war when the Federal government deemed that the technology was relevant to the defense of the nation. I'm personally not opposed to a system along these lines, although I would suggest something more like the arbitration that the government does to settle labor disputes. If a potential licensee and a patent holder couldn't come to a reasonable agreement, then the potential licensee could request Federal arbitration, plead the case for a reasonable agreement, and if ultimately necessary, receive a deal through the Federal government. You'd obviously have to tinker with the rules for competitors forcing deals out of each other and it would cost a ton of money to establish the fair market value of technology (before it hits market) but I think it could all be ironed out.

I wouldn't touch the copyright issue. I know quite a lot about the patent system but I'm not an expert in copyright law. And yeah, the devil IS in the details.

Gestalt, Venn, Hypocrisy and other assigned words

[Anonymous Coward]

Wow -1 Flaimbate. No surprise though since slashdot is not about the truth.

The problem and the reason why the proper moderation is flamebait, is that you can't claim hypocrisy or inconsistency, unless if you beleive that slashdot is some sort of gestalt entity. If you mapped it out with some Venn diagrams, I think you'd find the number of people holding both portions of any of the gradparent's couplets is extremely small.

Between the short answer format and the self-selection of authors, it is not surprising that very few complete value systems with all the necessary shading and application are presented. As such, there are plenty of posts that agree on the surface but reflect widely divergent opinions and systems.

To some up, both post have some valid points, but seem to mistake some trees for the forest.

Re:Good, but not for the obvious reason?

[KarmaBlackballed]

Okay, patents create an eco-system that supports companies like yours. Your company would not exist without them. Why is that a better eco-system than one without patents? You say something particularly interesting:

It is this very reason why our company won't even contemplate doing business in Korea or Taiwan. IP is the only thing we have, and those nations are not exactly know for their respect of ownership of IP. IP laws are what keep our business in existence and in the US.

Korea and Taiwan seem to be cranking out real products pretty darn quickly from what I can tell. There seems to be alot of technological inovation saturating Korea. Perhaps it is easier to create real products in those places?

Would you be unemployed without patents to build your business model around? If you are smart, I doubt it. You would find a way to build the deliverable products, or partner with folks that do. It would be a different business model, and perhaps a better one for everybody.

funny thing

[dbrower]

is that the TOE concept seemed to have been invented a long time ago. The "Excelan" tcp/ip ethernet from around 1984 comes to mind. See for example, this, which says,

what about TOE?
TCP offload is an old answer,
- 1983 : Excelan i186-based "smart adapter"
- 1986 : CMC 68020
- Early 1990's : SGI
- Late 1990's : Adaptec, Alacritec ...

Hey, there they are! Wonder what their "innovation" was that made it a better idea than the first few incarnations?

-dB