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

[bonch]

I'm confused; I thought we were against software patents?

Re:Watch out Microsoft

[DrEldarion]

For a change? People are always trying to take shots at Microsoft, it's just that most of them fail (and most of them SHOULD fail, since they're 99.9% BS, like the Eolas case).

Re:Watch out Microsoft

[dreamchaser]

Try to keep up. Software patents are a *good* thing when used against Microsoft!

(for the humor impaired, that was meant to be tongue in cheek)

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

[teknomage1]

Personally I hope microsoft takes this as an opportuity to reevaluate it's stance on software patents....

...Hey, I can dream....

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

[UnknowingFool]

(and most of them SHOULD fail, since they're 99.9% BS, like the Eolas case).

Eolas is rather questionable but that doesn't mean this case is without merit. MS has done kind of thing before. For example, Stacker and Goldtouch.

Goldtouch Tech makes peripherals and launched a lawsuit against MS. After they shared a new mouse design with MS for licensing considerations, MS declined. 18 months later MS made a mouse that looked remarkably like theirs. This was around the 1999-2000 time frame. I don't put this past MS.

As a whole, I don't think Ballmer and Gates are urging these tactics. MS is a big company. Their will be bad apples with power and influence in any organization that do things that are immoral or illegal.

Re:Watch out Microsoft

[Anonymous Coward]

It goes this way:

patents == bad.
patents used against M$ (must use the $ sign) == good

copyright infringement == good
using GPL code and not releasing source == copyright infringement == bad

sharing music / movies != theft as nothing physical was taken
using GPL code and not releasing source == theft as the source was 'stolen'

SCO making unfounded claims that Linux poached SCO code == bad
Linux zealots making unfounded claims that M$ uses GPL code == good

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

[Anonymous Coward]

It's called "blowback". Microsoft, IBM, etc. etc. have just realized that anyone with a smart patent attorney and a BS patent might get lucky filing against one of the big guys.

Microsoft in particular has recently been calling for some "patent reform". If you're as cynical as I am, that means making it easier for Microsoft to use their patents and harder to be the target of patent attacks by less well financed entities. Pretty good summary of the MS position appears to be here:

http://ipbiz.blogspot.com/2005/03/microsofts-bra d- smith-on-patent-issues.html

Re:Watch out Microsoft

[sconeu]

May I suggest you read Startup - A Silicon Valley Adventure, by Jerry Kaplan, and you'll see that this is standard modus operandi for MS.

That's exactly what they did to Go! Computer.

Re:Watch out Microsoft

[dnixon112]

We are against software patents. The reason this is a good thing is simple. Big companies have a lot of lobbying power with the government. 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. If big companies, not just some open source junkies, are using their lobbying power to change software patents then it will be a lot easier to get the system changed.

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

[eraserewind]

We are anti-patent, but we are pro-schadenfreude.

Re:Watch out Microsoft

[timeOday]

Yes. If you are against a law, pray for its enforcement against the rich & powerful. That is the quickest way it will be changed.

Re:Watch out Microsoft

[wardk]

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.

This certainly could be the case.

I know they were so unimpressed with Stac's disk compression technology, that they quickly wrote their own from scratch in a clean room. wait, maybe that was Sybase SQL Server. No, that's not it.

maybe the risk losing a suit in the end is cheaper than either paying legit royalties or investing the R&D to roll your own. I think maybe MS has so much money, they are willing to take these sorts of risks, it's only money...that stuff falls from the sky for them.

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]

Microsoft is currently defending itself in over 30 of these patent cases. Microsoft has huge piles of money, they talk to everyone, and they have a long history of shady dealings. Patenting a technology that Windows is likely to infringe in the future is the "new" way to make scads of money in the software business.

It's truly ironic that Microsoft paints Free Software as having patent issues. Heck, even IBM is starting to realize that patent reform is probably in its best interest.

Re:Watch out Microsoft

[Austerity Empowers]

I agree mostly.

Consider a historical invention that was truly worth patenting, like the transistor. By demonstrating and explaining the benefits of technology to any number of huge companies, most of them with R&D interests and good technical people would see how valuable the invention is. They'd also know that they may not be smart enough to invent it on their own and would pay.

Consider on the other hand someone giving a power point presentation on the concept of one click shopping. I know that I could hire any given ambitious junior high school student a minimum wage job to build that for me if I describe it to him. To sue me for doing so because I didn't pay said presentor simply because he had a "patent" on this idea is pretty lame. If this is the case, I'm afraid I'm with Microsoft on this issue. MS is evil, I agree and they will burn in hell. But they do not have the market cornered on evil.

It would be amusing if each MS hater went about patenting every single thing that crossed our mind and sued MS for infringement. We could "prosecute" on the cheap, and MS would be forced to fight us all off. Death by a hundred million mosquitos. Hey, the patent system might even get a much needed reform out of it.

I hereby patent this process, but I grant each person license to use it against MS, free of charge.

Re:Watch out Microsoft

[bergeron76]

We are against software patents.

Please don't include me in your blanket statements. Likewise, I don't think the entire slashdot community wants you speaking on our behalf.

I do, however, agree with you that there needs to be some MAJOR patent reform - and QUICKLY. IP, much like technology, grows at an extremely rapid rate.

Re:Watch out Microsoft

[Jason Earl]

The funny bit is that you don't need to prosecute "on the cheap." It's easy to find competent legal assistance when you are going after a cash-laden company like Microsoft. Eolas was awarded $500 million dollars for supposedly patenting web browser plugins. That decision is currently being appealed, but still that is a *lot* of money. Competent lawyers will find *you* if you have a chance at that sort of a windfall. As I said before, this is going to become the software industry of the decade. Unless, of course, Microsoft (and IBM) rethink their patent strategy and start pushing for sanity.

Microsoft is probably in the right on this subject, but unless they start lobbying for patent reform NOW, they are going to get screwed either way. I would feel sorry for Microsoft, but they have been actively pushing for the expansion of software patents, and Microsoft has been very aggressive in using patent in marketing campaigns against Free Software. Until Microsoft changes its stance on software patents I hope that these patent houses bleed MS dry.

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.

Re:Watch out Microsoft

[Jesus_666]

I wonder if they'll give away free evil bundled with the OS. :)

They do, it's called Internet Explorer. ;)

It's Alacritech, isn't it?

[winkydink]

Alacritch sounds like something you need Tinactin to get rid of.

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...

Mountain out of a molehill

[gbulmash]

Based on the press release, it seems more like Alacritech is trying to boost its own profile and try the case in the media.

First, if it requires a much higher standard of proof to get a preliminary injunction than it does to win at trial, as they claim, how come there are trials where preliminary injunctions are granted and then the plaintiffs lose? They're trying to play up this minor victory in the opening salvo of legal maneuverings as if they've already won the trial. Their lawyers know that's not the case and so do Microsoft's lawyers and execs. So who are they tring to convince?

And would Microsoft think a single networking technology would provide that much leverage? Seeing as the phrase comes from an Alacritech lawyer, it seems like just so much more hyperbole. If Microsoft "rules the world", it does so more because it owns the consumer/business desktop than because of huge wins in the server market. Microsoft has much more competition in the server OS world than it does in the desktop OS world.

All, in all, I consider this non-news. Let's see if the injunction withstands an appeal or two, or if the case withstands some of Microsoft's early motions. Until then, IMO, this is all just a lot of preening by peacocks in suits.

- Greg

Re:Mountain out of a molehill

[WebHostingGuy]

[i]A preliminary injunction is absurd in this case, because the alleged damages are easily monetized. Prelims are only supposed to be for situations in which an irreversable wrong might occur.[/i]

Not really true. A preliminary injunction is the appropriate response here. Basically the plaintiff is arguing Microsoft stole their IP. They do not want anyone using it who does not pay them for the license. They also do not have to let anyone ever use it. Why would a court force a company to license their IP against their will? They would not. This is the case here. Microsoft did not license the technology, but still used it (the plaintiff's argument). Therefore the plaintiff says to the court we ask you to force them to stop using it. If the plaintiff can show that there is a reasonable likelihood of success on the merits of the case and that there is damage from not stopping them from using it now then the judge will grant the preliminary injunction. What the plaintiff argued (and it appears successfully) is that the harm they would suffer is that their trade secrets, their IP, is being used by someone else to unlawfully profit. If released by Microsoft someone could reverse engineer or possibly someone at Microsoft could be sloppy and release the source code, thus depriving the plaintiff of unspecific future losses.

You do not just deny a preliminary injunction because there is also the potential for money damages. In the legal system you have money damages (law) and non-money damages (equity). In this case they would have pleaded (asked for) both. First, money for stealing the IP and second a court order to stop them from using it.

What makes this newsworthy is that preliminary injunctions are hard to get and more difficult to win than a normal trial. Either the judge totally blew the hearing/order or there is enough evidence to support the plaintiff's claims at this point. And if there is enough to support their claims then Microsoft could be in a problem if they have to remove the code before release. However, I personally believe if this is the case they would simply buy the license or buy the company.

Microsoft Chimney

[techguy911]

And to think for all this time I thought Microsoft Chimney was going to be an addon to Longhorn to help cool down my new quad core Pentium 8 256 bit nano-processor, which is what will be out by the time they release it.

I'm starting to see the software patent problem.

[Future Man 3000]

I can see how a small developer can infringe inadvertently on an existing patent, whether by happening across the same method or forgetting that he observed the method in an existing product.

That said, if a company with the size, resources, and hipness to the patent system that Microsoft has still has problems with the patent minefield, clearly something's wrong and needs to be fixed. The patent system is there to protect innovators, not to pull the legs out from under existing and profitable companies -- the economic ramifications of permitting individuals to sink corporations over legal silliness are staggering.

Good, but not for the obvious reason

[Verteiron]

Every time something like this happens, it pushes large companies a step closer towards realizing that perhaps software patents are not an entirely Good Thing for the industry as a whole. And that means said large companies are one step closer to lobbying for software patent reform which, as we all know, is what it takes for any actual change to occur.

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:Good, but not for the obvious reason

[Maestro4k]

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.

• It's a bit different, software patents patent an algorithm generally. To put this in perspective, you know that 2 + 2 = 4 right? Well I can write a bit of code implementing an algorithm to add two numbers and give the result. Now let's say I get a patent on that, and enforce it. Suddenly the entire industry has to pay me licensing fees to add two numbers in a program.

• In software there are multiple ways to do some things, and others there aren't. Many of these software patents specify a specific way of implementing an algorithm, but then if someone else indpendently comes up with a way of doing the same thing, the odds are a LOT of the code will be similar. Then the company with the patent sues company #2 to make them stop using code they developed that does something similar and/or pay fees to company #1 on something that company #2 spent the time and money to develop independantly. Company #2's losing money here either way.

  I'm guessing in nanotechnology if you come up with a product the odds are against someone being able to create the same product without the exact same methods used. In software this isn't true. And fundamentally can you really lay claim to something like x + y = z?

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.

• Patents aren't always bad, I'm sure they're quite vital in nanotech in fact and that they're a good thing there. As you say, it allows your company to do R&D and license it out to other companies to make the product viable. Both of you win, you get money from your research and they get money from the product.

• However, software patents are not a good thing. They allow companies to patent things that are far too easy to be recreated with absolutely no knowledge of the existing patent. With software patents only the holder of the patent wins. Other companies are forced to pay licensing fees for something they may have developed on their own as well, but can't risk a lawsuit. Or they can't get a license and interopability goes down the tubes. Software patents tend to lead to stagnation in creativity. Even Bill Gates has admitted that Microsoft could have never become the company it is now if they'd had to get licenses for every little thing they implemented in software when they were starting out.

  Back to the adding algorithm, imagine if only Microsoft was allowed to add two numbers together in code. Not a particularly pleasant thought is it?

Re:Good, but not for the obvious reason

[Ambassador Kosh]

Are you SURE there are different ways to do things? I have seen programmers around the world solve a given problem and have the code be darn near identical. Heck a number of times on the some of the programming channels I am on several of us have written a solution for someone and our code was IDENTICAL. Same spacing, same var names etc and that was for up to 20 lines of code.

When you patent software you are patenting ideas. Supporting patents on software would be like supporting patents on books. The value is in how it is all put together in the end, not in all the bites and pieces. Just like for a book the value is not in all the words but in the full telling of the story and the same is true of software. The problem is that unless you write software for many years it is very hard to understand this. Without doing it people just can't see how it really works.

Re:Good, but not for the obvious reason

[fcw]

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.

Time to be surprised. Economically, software is fundamentally different from all other technical fields because it is immaterial.

We develop the basic idea of a new technology, work out the initial kinks, then sell it to another company for scale up operations.

This is the kind of thing that patents can actually be good for.

However, in software, there is no "scale up operation" that requires the incentive of patent protection -- once you've worked the kinks out of your software idea, you're done. By design, computers can generate unlimited, perfect copies of your software forever for free, and the standing infrastructure of the internet makes distribution to arbitrary numbers of customers effectively error- and cost-free as well.

This is the reason we have free software, but not free drugs or free nanotechnology.

And it's also the reason why patents for software are a mistake of the first order.

Kill patents and you better get cozy with universities and massive corporations, because without IP laws entrepreneurs and risk taking startups are SOL.

This is only true when there are significant financial risks associated with bringing a new invention to the marketplace. Remember that patents are solely an economic device to protect such investment, in order to encourage investors to pay for the new factories or processes or materials. If the inventors can do it by themselves, and can get started with the money in their pockets, what are the patents needed for?

When such investments are not required to bring a new invention to the market, patents are an unnecessary burden, especially on the small company.

For a real example, take Microsoft; they went from nothing to literally the richest company in the world in 20 years in software without patent protection. (They want them now because they see their lucrative business model threatened by free software, and so they are doing the business equivalent of running to Daddy for help by asking for government-sanctioned barriers to entry to the market.)

Surely the prospect of creating fabulous wealth without significant cash outlay is sufficient incentive to innovate in software?

Which evil to support?

[hellfire]

Patent lawsuits.... Microsoft.... evil quotient reaching infinity...

cannot... decide... which to... cheer for... brain can't take... much more... **BOOM**

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."

Re:Think Twice ...

[foobsr]

I congrat myself, rating the stupidity of the common "American Idiot" (Green Day) perfectly.

CC.

the plan..

[jspectre]

1. invent technology
2. apply for patent
3. show technology to microsoft (who then copies said technology)
4. sue microsoft for infringing on patent
5. wait for buyout settlement
6. PROFIT!

Re:We are

[symbolic]

Well, let me speak for myself. I don't think they are a good idea...at all. The best thing about *this* case is that it could easily become a thorn in the side of one of the biggest patent whores in the US. 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.

EAT PATENT, MICROSOFT!

No net effect

[gosand]

Every time something like this happens, it pushes large companies a step closer towards realizing that perhaps software patents are not an entirely Good Thing for the industry as a whole.

Quite honestly, Microsoft doesn't give a shit about the industry as a whole. Microsoft cares about Microsoft, and overall software patents are a net gain for them. So they have to settle with some small company for pocket change - they win in the end, because they most likely got away with this behavior many times before. And will get away with it again. (and it just isn't Microsoft that does this kind of thing)

profit equation

[vlad_petric]

Giving ~50 million dollars to a cocky startup: nothing.

Preventing OSS adoption through patent/indemnization FUD campaigns: priceless

Patents is really the only ace they have right now against OSS.

who writes these titles?

[hurfy]

A start-up with a 10-year history ?!?

Looking at their timeline does make Ms look a little suspicious. And while saying a prelim injunction is harder might be stretching it a bit, it certainly isn't easy.

I'll have to side with the 'little guy' for now.

Especially as we don't like submarine patents and they are acting before Ms sells a billion dollars worth of stuff using it, sounds like they are trying to be relatively fair (without knowing what those favorable terms are, of course)

That and the fact they were able to get an injunction along with that suspicious looking timeline.

Ms using it and dealing with consequences later doesn't sound out of character. Make a billion dollars, put it in bank, years later pay fine/royalties off the interest sounds good if you can pull it off :(

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:Follow the money: Alacritech vs. Broadcom?

[pavera]

Which of course is the point of patents.
Alacritech "invented" the idea, so they get to be the only game in town for 20 years... This is the problem in my mind with software patents (the length of time not the monopoly granted).

Software patents would be fine if they lasted 2 years, maybe 3 at the very most. I feel that software patents don't achieve their purpose of fostering innovation because if I patent process xyz, and no one else can use it except for pay me for it, well, someone is going to figure out how to do xqwz and end up at the same endpoint without violating my patent. So, in short the patent didn't make me any money, it just encouraged reinvention of the wheel, which makes all development slower.

SOP for M$

[jwave]

OK, at the risk of clobbering my newly grown karma, allow me to point out that this is a shining example of how Microsoft has grown to become the great behemoth it is.

Below, find three sequential elements from the timeline in TFA.

• 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

How many articles have we seen here on /. that duplicates this pattern? Who else has been stepped on by the giant in such manner? I'm sure somebody could find a fist-full of articles here in history that shows exactly that behavior pattern.

Am I correct in recalling that Novell got stung? IBM? I know those are giants themselves. I'm just glad to see that a little David has been able to sling his stone bullet into the face of the Goliath. Now, let's see if they can make it really count.

I'm not asking to shut down Microsoft. Just have them play fair.

Is that too much to ask, Bill?

(Bill: "Why, yes. It is.")

- - -
When you say that you agree to a thing in principle, you mean that you have not the slightest intention of carrying it out in practice. -- Otto Von Bismarck
(this sig stolen from /.)

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.

Obvious??

[Anonymous Coward]

I read TFP (The Fine Patent), or at least a good part of it.

It seems to be nothing more than the specification of the interface to an I/O processor. There have been I/O processors since the 60's.

I couldn't find anything that was at all innovative about.

I think M$ probably looked at what they had, said "So what? How does this help us?" and proceded to go ahead and implement what they had already envisioned.

If a patent doesn't have something in it that causes you to say "Why didn't I think of that?" or "Why did the aliens contact that guy instead of me?" it probably shouldn't be granted.

Smells Phishy

[BrainSurgeon]

Ok, lemme get this straight...

Alacritech "shows" MS this technology back in 98
MS breaks communication in 99 and starts to use the technology without license
4 years later Alacritch then "tries" to offer a license.
One year later they sue

Why did they wait 4 years if they knew MS was using it without a license? Sounds like a Phishing scheme at the corporate level to dig into some pockets.

Re:Smells Phishy

[Maestro4k]

Why did they wait 4 years if they knew MS was using it without a license? Sounds like a Phishing scheme at the corporate level to dig into some pockets.

• It's not clear from the article when Alacritech found out MicroSoft had continued to use their technology. If they didn't find out until four years later, it would make sense that there's a gap there before they offered them a license. If all happened as Alacritech says it did, it's to their credit they tried to get MS to do the right thing and offered them a license. They could have skipped that and gone straight to a lawsuit, after all MS had stolen their technology pretty blatantly.

• This also doesn't look like a submarine patent scheme, MicroSoft hasn't actually started shipping products with the technology at question in them yet. Alacritech seems to be trying to prevent them from doing so, instead of waiting until it was all over the market then suddenly popping up and filing suit.

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."

Phishy, no, Need patent to sue for infringement

[Finsterwald P Ogleth]

And if you look at the dates, Alacritech didn't get the patent till 2000, and another one in 2002.

I think you *need* the approved patent to sue for infringement. "Patent pending" won't cut it in court.

Besides, they may have notified MS in 2000, when they got the patent, but MS has the money to "wait it out", gambling (somewhat...eh, maybe not that much, based on their record)that the little guy will get starved out.

Burst was in the same position. I think the major reason Burst settled was because of cash flow.

Eventually, Kolar-Kotelly will have to take these types of behavior under legal consideration as evidence that MS will just not change. Maybe then we can get a ruling that's fair to the marketplace...

FPO

lawsuit documents prepared with microsoft word

[xoba]

lawsuit documents were prepared with microsoft word:

http://www.alacritech.com/assets/applets/Motion_fo r_Preliminary_Injunction.pdf

isn't filing suit against microsoft against their software license agreement? or if you do decide to sue microsoft, you agree to stop using their software?

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.

Re:We are

[XorNand]

If I invent something and don't want to do anything with it, why should the gov't have the right to force me to share it? And who gets to dictate the terms of the licensing? The patent office that we already love to call inept?

I understand you're reasoning, but transfering power away from big corporations and giving it to big government doesn't really solve the problem, it just moves it around.

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:We are

[Lehk228]

the government is not forcing you to share what you invented, the government would be forcing you to sell at a reasonable price if you want to the government to prohibit others from inventing their own version very similar to yours

That Disturbance You Felt in the Force

[Greyfox]

Is the impending Microsoft buy-out of the company. We've seen this exact pattern repeated any of number of times in the past with Microsoft and I'm sure we'll see it again in the future. In the business world, meeting with Microsoft to divuldge your technology secrets is the same as a sorority girl yelling "I'm soooo drunk!" at a frat party. Suing them is the the foreplay to some hot Microsoft buy-out action!

Re:That Disturbance You Felt in the Force

[jwave]

In the business world, meeting with Microsoft to divuldge your technology secrets is the same as a sorority girl yelling "I'm soooo drunk!" at a frat party. Suing them is the the foreplay to some hot Microsoft buy-out action!

OK, I've never really understood why a huge company would want to own the patent and leverage it against the competition, while a small company would want to be bought out of business. To me, I'd rather see my small company grow as a result of the tools and advantages we develop. And if we could grow with residual income from large companies, including Microsoft (whether through contracts or fines), then that would be all the better.

So, I guess my question to everyone is, " Why is it better to be bought out by Microsoft than to license your patents to them (and other corporate customers)?"

My guess is that it's the Lottery Mentality... get the quick pay-off and go party with your "winnings."

Just another thought, why should Microsoft be the buyer (and therefore patent winner) in this situation. Aren't there other buyers who might want to leverage that technology? Two companies come immediately to mind: IBM and Canopy Group (SCO).

- - -
Heretic? Lunatic?
...other than spelling and pronunciation, what's the difference?

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

All Patents Bad

[Swift2001]

Except for the one I took out on Schadenfreude. Think about it, though. What IS Microsoft except a huge rat's nest of intellectual property? Oh, and those mice and the X-box.

Re:We are

[JabberWokky]

Ah. It seems that they must have at least some time in the past... not against Linux that I recall. A Google gives... many many patent lawsuits against Microsoft, but no obvious ones where Microsoft sued someone else.

A rundown through the first page of returns ("Microsoft sued patent") shows that people who have sued Microsoft include Eolas, American Video Graphics, AT&T, University of California, Burst.com, the State of Florida, Kodak, InterTrust, Priceline.com, Forgent and others.

In the same return page, Microsoft sued Lindows (not for patent abuse), eight identity thieves (not patent), several spammers (not patent), a Brazilian magazine (for defamation), 117 phishers (not patent), and more spammers (not patent).

Of the returns on Google's first page, almost all are people suing Microsoft over patents, or Microsoft suing over non-patent related issues. The closest thing is a breach of contract suit against Timeline, Inc over SQL Server that involved a patent filed on their joint project by Timeline while they were partners.

It occurs to me that I've seen far more "Foo sues Microsoft over Patent X" than "Microsoft sues Bar over Patent Y" articles.

Of course, Microsoft does plenty of other dubious competitive practices... I haven't touched a product of theirs in almost eight years now. But I've not seen them wielding patents the way Sun and Apple do (or that IBM used to).

--
Evan

Re:Hypocracy as a form of government

[Politburo]

It's not really that funny or strange. Most people would probably feel the same way. People without power always bitch about the system. People with power don't want to change a system that gives them their power. It's the same everywhere.