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Microsoft Leveraging iPod Patent?
willie3204 was one of several readers who noticed this story about Microsoft cashing in on the iPod Patent that they apparently beat Apple to. Since this song looks to be played to the tune of $10/iPod, I imagine someone will be singing the appeal song.
Using common sense, a disgusting move far from surprising from a company who's main innovative power seems to be located in the Legal department rather than in R&D. What's next, a patent for "creating software"?
1. Steal Apple's technology 2. File a patent before they can 3. Profit!
David Kaefer, Microsoft's director of intellectual property licensing, said it was open to letting other firms patent its innovations.
Great news source. There's a world of difference between "let other firms patent its inventions" and "let other firms license its patents."
rooooar
There was a similar situation between AT&T and IBM in the late 80's regarding fiber optics technology. In that case the ruling was in favor of AT&T (which would be Apple in this case.)
Two words: Prior Art. MS filed two months after the debut of the iPod. Apple got caught with their pants down by filing late, but I doubt seriously MS will be able to collect a dime on the patents.
If there's any intelligence in the court system, this will be reversed. Guess Apple is screwed.
Slashdot - where whining about luck is the new way to make the world you want.
... is shit. The $10 figure is almost certainly a coke-fuelled[0] invention of some lazy-ass semi-literate tech-journalist needing desperately to fill space, who's noticed that such a patent exists (probably read it on some other tech news site, but felt the story needed spicing up). Until MS or Apple actually make a statement on it, this is just moronic conjecture.
[0] I mean Coca-Cola, obviously.
Athletic Scholarships to universities make as much sense as academic scholarships to sports teams.
Here's what the facts really are http://wizbangblog.com/archives/006750.php
/., reporting on the story have the facts wrong
1. M$ doesn't HAVE the patent yet, as it hasn't been granted yet
2. M$ is unlikely to get the patent, as their is prior art
3. Media outlets, incl. apparently
In Soviet Russia, I ruled you
Apple won't just give in to this easily. At the same moment, Microsoft is sore that they haven't been able to break iTunes success, or get into the portable audio market as well as the iPod has. They've known about this patent issue for a while, I'm sure, they just had no drive to take this to the limit. Anyhow, I'm sure people can agree that this isn't a done and done deal. How many people think Apple would simply pay the fees? or that this has to do with the impending Apple x86 battle with windows?
Ubuntu, the way linux should be.
Try Ubuntu FREE! --
Apple is a pretty large company with a strong legal department. I am sure if there is a loophole or prior art, they will find it. If not, Apple has billions in the bank. I am not losing any sleep though I cringe at the thought of giving Microsoft money. Ah, who I am kidding- there is no way to use a computer without paying something to those guys.
You don't have to be smart to use a Mac, you just have to be smart enough to buy one
I develop with Microsoft software. My desktops are all Windows desktops (though I run Linux in virtual sessions). I target the Microsoft environment because, in my analysis and for the industry I target, it is the best choice. I've even been accused on Slashdot of being a Microsoft astroturfer countless times for shooting down misguided and misinformed anti-"M$" FUD. While I've been a bit put off by some of Microsoft's prior actions, I could always see their position. I have never owned a Mac, and I don't own an iPod.
Yet this action absolutely disgusts me.
Microsoft seriously risks turning off, and scaring away, the people who have the influence and persuasive power and technical know-how to maintain Microsoft's position. Hearing some scumbag talking about "licensing their innovation", when he's really talking about a deplorable abuse of the patent system, really makes one ponder what's the next (we already got hints from the sad reality that Microsoft considered buying Claria). Previously it was Microsoft the Evil to the conspiracy theorists and the people with an axe to grind. The title is becoming more real to the mainstream.
My own theory is that Apple declared War on Microsoft when they announced their intention to release an x86 version of OS X. The OS is the powerhouse of Apple's future success. This could be a very serious competitor to Microsoft Windows. Really, who isn't interested in trying a polished functional alternative to XP? Now Apple's opening salvoes have been returned by Microsoft pulling this licensing garbage.
Really. This is all out war now.
(2,3-Benzopyrrole)
The last time this story came up I dug up the actual patents in question. (Don't have the links handy atm) IANAL but from what I could gather, the patents don't overlap.
... although knowing MS the execution would end up like Clippy *shudders*
The Apple patent covers all the basic iPod functionality, scroll wheel, music, video (forward thinking I suppose), etc etc.
The Microsoft patent is for something called "Auto DJ". Basically it's software that allows you to pick several songs as positive seeds, and at least one as a negative seed, and based on your choices it will generate a playlist from your music library. Sounds like a DAMN good idea
FPAP - First Prior Art Post!
Congratulations! You're the first Slashbot to write 'Prior Art' in this patent discussion! Good job winning the race, and good luck with the free karma!
Lawyers only work when everyone agrees to abide by the lawers and judges. People generally only agree to this because some "soldiers" somewhere are willing to enforce what the lawyers and judges say. I only care about lawyers and judges because of the guys with guns behind them.
People in the US in particular seem to forget that the only real way to enforce anything is with force.
"There are a dozen opinions on a matter until you know the truth. Then there is only one." - CS Lewis (paraprhase)
The iPod was launched in November 2001 but Apple waited until July 2002 to file for a patent; Microsoft snuck in to license some of the technology the previous May.
Doesn't previous art count for anything anymore?
Microsoft doesn't hold the patent, they have an earlier patent filing but the patent has not been granted. Microsoft does not have the right to charge Apple a licence fee for each iPod sold.
Sky is wrong.
I'm not a Troll, it's reverse psychology.
Of course, the cost of forgery is immeasurably less than the cost of losing a really big patent fight: as Lord MacAulay noted many years ago, in India there were even companies in Bombay that obligingly kept stacks of paper and ink for different years up to about 40 years back, along with official government seals, so they could do you anything you wanted. This is the major weakness of the US system, i.e. the incentive to fraud is disproportionate to the risk. The weakness of the European system (first to file) is of a thief stealing an invention and filing it first.
The inability or unwillingness of the EC to understand this is at the root of the problem with software patents shows that the last people to leave in charge of technology are civil servants and lawyers.
Panurge has posted for the last time. Thanks for the positive moderations.
The long answer is that it takes a shit load of money (usually millions) and time to overturn even obviously bad patents. Thus they are hobbling Apple for a bit and presumably generating a bit of fear, uncertainty and doubt as to iPod. It's basically like a nuisance lawsuit to tie up resources. Everyone, especially MS, knows that MS can't compete on technical mertis so it's been doing everything possible to ensure that no one else can either.
Take this as a warning as to what will happen if MS is able to force software patents into Europe and no longer has to play nice on either side of the Atlantic.
Beta is broken and the link to classic doesn't work. Stop wasting our time or there won't be anybody left here.
Has anyone patented buttered bread yet?
No, but I have several butter related patents pending.
1. The Butter Pen. Put your standard stick of butter in and draw the butter on to your toast/pancakes/waffles/etc. The butter pen automatically maintains the butter at the perfect temperature for spreading. the butter.
2. The Butter Powered Clock. Harnessing the internal power of butter, just feed it a new stick of butter every sunday and this clock will keep running. Plus as an added bonus your room will smell nice and butttery.
3. Popcorn Irrigation System. Ever notice how the popcorn on top gets all the butter and by the time you reach the bottom, you are gnawing on dry butterless popcorn? The Popcorn Irrigation System solves that problem once and for all by equally distributing the butter to the entire batch. Using a system of pressurized tubes and nozzles along with liquid butter, each kernel is misted equally with delicious butter.
4. Butter Rifle. For long distance buttering hobbyists. How tight is your spread?
I better not spill all the beans, these inventions are really pushing the limits of butter technology to the next phase. You can see how exciting the field still is though.
music lover since 1969
... will be for Microsoft to drop the Mac version of Office, and Apple to release an Excel-competitor. I'll be skeptical of the all-out-war theory until those two things happen.
To a Lisp hacker, XML is S-expressions in drag.
You're an idiot and your comment is overrated. Learn why below.
Yes, it's true: Steve Jobs said in a sentence: "great artists steal." Unfortunately for you, his entire statement explained why he felt that saying was actually wrong and that people at Apple have been careful not to steal technology or ideas.
Don't take part of a statement and twist its intentions around to suit your poor argument.
And yes - Apple invented the first commercial GUI and did so with rights from PARC and with a number of PARC engineers that went to work for Apple.
And of course, the patent has nothing to do with putting products in white boxes. Thre are real innovations behind the iPod that distinguish it from other MP3 players.
Lastly, none of this matters. America is not a "first to file" country, but rather a "first to invent" country. Since the iPod was marketed and public before Microsoft's application, it will likely be rejected by the appeals process because of prior art violations.
The next comment I write will be ready soon, but subscribers can beat the rush and see it early!
Nope, in the U.S. only, the first person to have invented the device wins, regardless of who filed first.
But what happens if two people design something similar with no knowledge of the others progress and a patent is filed by one before the other?
The case is going to hinge on documentary evidence as to who completed work on the invention first. From 35 USC 102(g)(1):
These invention priority cases can get very messy, however, and the U.S. is probably soon going to change to "first to file."If you don't know where you are going, you will wind up somewhere else.
As the applications stand, Apple will likely be issued a rejection by the USPTO based on MS's prior application. Assuming Apple can demonstrate that they had invented this product first (shown through sales, and preferrably dated design drawings, schematics and such), they should overcome the USPTO rejection. At that point the USPTO would invalidate MS's patent.
As a bunch of people above have pointed out though, this only works in the US. In Europe and essentially the rest of the world, where a first-to-file system is used, Apple probably won't be so lucky. If MS beat apple to filing in any first-to-file countries, they should retain the patent even though Apple actually developed a product using the patented technology first. There are pros and cons to botht he first-to-file and first-to-invent system, but that's an argument for another time/
It'll be interesting to see if MS will license the patent to Apple, or if they'll force apple to change the interface. Neither one makes MS look particularly good, but this really could let MS get a foothold in the MP3 player market, taking the interface everyone loves so much and building it into a player of their own.
The moral of the story: patent your ideas before marketing them to the public.
Not really. Its more of an expansion as the previous article was about the fact that microsoft had the patents. This article focuses on the "fact" that microsoft is trying to use the patents to squeeze money out of apple. However, as I haven't seen this article anywhere else yet, and i've never heard of SKYNews I am skeptical as to weather this is fact yet or not. I wouldn't be suprised if it was though
Take off every sig!
The short answer is, yes, the patent is invalid and will probably be over turned. [...] Thus they are hobbling Apple for a bit and presumably generating a bit of fear, uncertainty and doubt as to iPod.
More likely, Apple will pull some patent they've been hanging onto that some newish version of Windows violates. Both sides will realize that both patents will probably be overturned at great expense, and a cross licensing agreement will make this all go away. This will happen without the average iPod user ever even hearing about it, much less having it influence their purchasing decision.
Justice is merely force that is applied in the right places (ie, the force is justified). The grandparent is not a troll. All law depends on enforcement. A lawyer can make a case and a judge can sentence a criminal to jail, but that's all just empty words unless someone is willing to use force to make the sentence happen.
That's not to say that all force is justice, and I don't believe the grandparent said that either.
More likely, Apple will pull some patent they've been hanging onto that some newish version of Windows violates. Both sides will realize that both patents will probably be overturned at great expense, and a cross licensing agreement will make this all go away.
...Microsoft wants something specific from Apple and is using this as a lever.
Or...
From the article:
"Microsoft and Apple have previously licensed their respective patent portfolios to one another and we maintain a good working relationship with Apple."
"Anyone that has ever gotten an idea based on any of my work and done something better with it-good for you."--J.Carmack
OK, I just couldn't let this go, so I did a little digging and I think I found the Apple application, it's 10/282,861, and the this is the link to the image file wrapper, which has all of the prosecution history.
The rejection is a 102(e) "anticipation" over Microsoft's allowed application, which, like a 102(a) rejection referenced in my parent post, might be overcomed by a "131" declaration, and, in fact, the inventors appeared to have done just that ( including Steve Jobs, who signed his copy). The declarations were filed on April 11 2005. A final rejection was submitted on July 11 and mailed two days later. What is very puzzling, however, is the examiner did not mention the 131 affidavit at all, which he should have done, even if it was grossly ineffective to establish an earlier date of invention for whatever reason(s). I can only speculate that the declarations were not properly forwarded or timely scanned into the file wrapper database and that the examiner was unaware of them at the time the action was prepared. Certainly, if the applicant files an amendment/response after final rejection this will be pointed out.
BTW the evidence contained in the 131 declaration is a press release announcing the ipod on November 9, 2001. My knowledge of 131 practice is weak so I don't know if the press release is sufficient to legally establish that the iPod as announced, with all the features, actually existed. I certainly know that if the press release were being used to reject claims like here in some hypothetical patent application by, say, Microsoft that it wouldn't suffice; you'd have to show something with more details that actually show that the features were actually there and were not "just press release vapor". I'm sure that the iPod was public and that it did have all the features claimed, but that would need to be shown more concretely than a press release. In any event the 131 declaration should have been addressed in the final rejection.
Didn't anybody notice that Apple and MS had a patent cross-license agreement in effect when the iPod shipped?
Nothing to see here, guys. Really.
-jcr
The only title of honor that a tyrant can grant is "Enemy of the State."
We have all been getting wrapped up in hysteria. The USPTO's examiner rejected Apple's application, supposedly as not patentable over a Microsoft patent application, or so it appears.
I used to be a patent examiner (1999-2000; left in large part due to the fact that I didn't feel the job could be done properly with the resources and time available). I've read, as many of you have, the respective applications, notably the claims. Keep in mind that only claims can be infringed upon. Patents are granted solely on an applications claims, not on any other stuff described in the application. While the full disclosure in application M can be used to reject application A's claims, A only infringes on M if it is claimed by M.
The claims of the M$ application (PDF) are not infringed upon, IMHO, by the Apple application (PDF). M$ claims a way of generating a playlist, whereas Apple claims a method of interfacing wherein a user directly picks items to be played. Even though M$ claims -- in a dependent claim that their system might be included in a media player, that still does not mean Apple is infringing on the M$ patent, should the M$ patent stand. It only means that Apple cannot patent its device over that which M$ disclosed in its application.
Further, IMHO, independent claim 1 of the Apple application specifically cites selecting items "through a rotational action with respect to said user device" -- something which I cannot find in the M$ application. Therefore, there is no reasonable case for infringement. The only question is whether that 'rotational' step alone makes Apple's app patentable over the M$ app (again, still assuming we don't even bother to knock out the M$ app), or whether Apple will need to narrow its claims a bit first.
I am not worried about the iPod infringing on the M$ app/patent in question. However, iTunes' creation of Smart Playlists appear to be a much closer match to what M$ discloses. That is where Apple should be worried, unless they can show a different, non-infringing algorithm for auto-creating their Smart Playlists.
The US Patent Office has ruled that Microsoft has the right to charge competitors a licence fee for each iPod sold.
The USPTO doesn't rule about whether companies have the right to charge, beyond allowing a patent.
Also, talking about a "patenting the iPod" does make sense. Neither Apple nor Microsoft invented portable MP3 players or even disk-based MP3 players. The patent in question seems to be about a particular feature of iPods.
Finally, given Apple's and Microsoft's cross-licensing agreements and close business ties, I also find it unlikely that any money is going to flow. Apple and Microsoft aren't enemies anymore, if they have ever been, and Microsoft doesn't want to see Apple disappear.