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

[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

[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

[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

[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

[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

[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

[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

[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

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

[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**

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."

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!

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.

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 /.)

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.

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."