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Corporate Espionage Involving a Patent At Microsoft

Posted by kdawson on from the balance-of-wrongdoing dept.

thefickler writes "Microsoft is taking a former employee, Miki Mullor, to court for securing a job at the company in order to steal information that would help with a patent infringement case he filed against PC makers Dell, HP, and Toshiba (in which Microsoft quickly became enmeshed). And while it appears that Mullor did the wrong thing, some pundits are asking: 'If you believed that your patent had been infringed, wouldn't you be tempted to do the same thing?'"

22 of 241 comments (clear)

  1. Repeat after me... by SirGarlon · · Score: 4, Informative

    "You can't steal information." It's intangible. Thank you.

    --
    [Sir Garlon] is the marvellest knight that is now living, for he destroyeth many good knights, for he goeth invisible.
    1. Re:Repeat after me... by commodore64_love · · Score: 5, Insightful

      No, but you can steal someone else's labor, by not paying them for the information they produced, or the metal car pieces they welded, or the floors they sweeped, or.....

      Theft of labor is a human rights violation and if a person does produce a new idea or item, and XYZ corporation takes that idea/item without compensation for the labor involved, a crime has been committed.

      --
      "I disapprove of what you say, but I will defend to the death your right to say it." - historian Evelyn Beatrice Hall
    2. Re:Repeat after me... by John+Allsup · · Score: 3, Insightful

      If you make something material and someone steals it, you no longer have it. If you have information and somebody copies it, you still have your copy. You lose exclusivity as to who know that information, but that exclusivity is not a material thing and cannot be stolen (since the person who makes a copy does not gain that exclusivity.)

      Material and information are totally different and it's a real shame that lawmakers aren't clever enough to see something so simple. That or they are too busy collecting campaign funds.

      --
      John_Chalisque
    3. Re:Repeat after me... by LingNoi · · Score: 3, Insightful

      yeah, those evil copyrights. They stop me from being able to sell GPL code without giving back the source. I hope they abolish copyright soon because it's so evil.

    4. Re:Repeat after me... by commodore64_love · · Score: 3, Insightful

      A lot of the stuff I produce at work is intangible... just data inside a computer. Does that mean my employer can take my data, and not pay me? LOCKHEED: "Thank you. We downloaded the program off your c: drive using bittorrent last night. No we're not going to pay you for it."

      Hmmmm. Interesting worldview these young college teens and 20-somethings have.

      --
      "I disapprove of what you say, but I will defend to the death your right to say it." - historian Evelyn Beatrice Hall
    5. Re:Repeat after me... by Anonymous Coward · · Score: 3, Funny

      That would be breaking of copywrite laws and NOT THEFT

      dumbass retard

      How fortunate you signed off as "dumbass retard" if you don't even know how to spell copyright...

    6. Re:Repeat after me... by wjsteele · · Score: 3, Interesting

      It is such a shame to me that so many people don't even know the rights and freedoms granted in the United States Constitution.

      The "exclusivity" that people get from the discovery of a new idea is guaranteed in Article 1 Section 8 of the Constitution.

      "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;"

      It's that simple. It simply boggles my mind to see so many people who try to discount that. It's there for a reason. Inventors discoveries rightfully should be controlled by the inventor (for a period of time, which is usually 20 years.) There are checks in place that allow others to use those discoveries if the primary inventor does not maintain his "rights" by notifiying the USPTO they wish to do so via maintetance fees. There are also avenues in place to allow the inventor to gain from that discovery via various licensing models.

      And, yes, I am an inventor. I spent several years perfecting the technology I now have the patent on after my "inspirational moment" when I put two and two together. I also spent countless hours working on it trying to figure out all the ways in which my idea worked. I then filed the patent, disclosing all the vairous "embodiments" of my invention. If some of you got your ways, all that work and effort would not allow me to even recapture some of my investment.

      Someone said it, if that work was allowed to be copied by others without compensation, I in effect, would have done their work for them providing them countless hours of free labor. THAT IS WHY THE CONSTITUTION HAS ARTICLE I SECTION 8!!!

      Bill

      --
      It's my Sig and you can't have it. Mine! All Mine!
    7. Re:Repeat after me... by SirGarlon · · Score: 5, Insightful

      Well then I guess we should have kept those unpaid laborers in the South. After all, they didn't "lose" anything when they picked cotton all day.

      They lost the cotton. The difference between tangible property and information is that if someone else takes your tangible property then you don't have it any more, and if someone takes information then both of you have it.

      Put another way: only one person can use a boll of cotton. An unlimited number of people can use an idea. Someone else using my idea does not preclude me also using it; Microsoft publishing a book I wrote does not preclude my also publishing it. It may make it impractical for me to profit from the book I wrote, but that falls under the category of "unfair competition," not "taking away a piece of property that I own." It's wrong, and it's also fundamentally different from stealing.

      The language of copyright holders - "own an idea," "intellectual property," "stolen ideas," "piracy," is calculated to make the public forget the fundamental differences between ideas and objects, and support laws and policies that equate intellectual property with physical property. This is to the benefit of copyright (and patent) holders, who can then rely on the government to bear the cost of enforcing their copyrights, among other benefits.

      The preponderance of people who claim that we have a "right" to "own" and profit from ideas shows how well this brainwashing is working. Apparently it goes so far as to make some think that a company can "steal" profits that haven't even been earned yet. The reality of intellectual property cases is quite different; see Polaroid v. Kodak.

      --
      [Sir Garlon] is the marvellest knight that is now living, for he destroyeth many good knights, for he goeth invisible.
    8. Re:Repeat after me... by Theaetetus · · Score: 4, Insightful

      An unlimited number of people can use an idea.

      As an aside, the value of an idea can be destroyed when more people know it - this is why we have trade secret law.

      Someone else using my idea does not preclude me also using it; Microsoft publishing a book I wrote does not preclude my also publishing it. It may make it impractical for me to profit from the book I wrote, but that falls under the category of "unfair competition," not "taking away a piece of property that I own." It's wrong, and it's also fundamentally different from stealing.

      I'll never understand why Slashdot, primarily a group of code-authors are so willing to shoot themselves in the feet and claim that they have no property rights in their works.
      To your example, that we should use unfair competition tort law instead of trespass property law, I pose this easy hypothetical: Mr. A, with $10 to his name, "copies" your software. He then sells it to Microsoft for $100, and Microsoft publishes it as part of Windows, destroying your ability to sell it. Provided Microsoft can show reasonable ignorance of Mr. A's actions, you have no possible tort claim against them. Your only action in tort is against Mr. A, and the most you can recover is $100.
      Under property law, you'd have the right to exclude Microsoft from using your idea, same as you could kick Bill Gates off your lawn.

      The language of copyright holders - "own an idea," "intellectual property," "stolen ideas," "piracy," is calculated to make the public forget the fundamental differences between ideas and objects, and support laws and policies that equate intellectual property with physical property. This is to the benefit of copyright (and patent) holders, who can then rely on the government to bear the cost of enforcing their copyrights, among other benefits.

      The preponderance of people who claim that we have a "right" to "own" and profit from ideas shows how well this brainwashing is working.

      It's one of the few explicit powers of Congress in the Constitution, important enough that the Founders put it right there in Article I, Section 8. It's also an affirmation of a right that has existed for a few thousand years. The "I don't believe in intellectual property (in spite of making my living through its creation)" meme you're espousing is the new one, and yes, it does show just how well brainwashing works.

    9. Re:Repeat after me... by SirGarlon · · Score: 3, Interesting

      "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;"

      Exactly; the difference between "exclusive right" and "ownership" is the difference between intellectual property and physical property. Using your patented idea without your permission is violating your exclusive right to that idea. It's not stealing the idea. Some people think the distinction is overly fine but I think it's critically important not to confuse control of an idea with ownership of physical property.

      If two people independently cut down trees and use the wood to build cabinets, each of them owns a cabinet. If two people independently come up with an idea, only one of them gets to patent it. So your "right" to get paid for "your labor" can result in your "stealing" the profits of the other guy, who thought of the same thing but applied for the patent one day later than you did. Does that seem right?

      Patents and copyrights serve useful purposes. But don't confuse them with physical property.

      --
      [Sir Garlon] is the marvellest knight that is now living, for he destroyeth many good knights, for he goeth invisible.
    10. Re:Repeat after me... by Elektroschock · · Score: 5, Informative

      Well, actually no one so far disputed the case Microsoft makes. Mullar does:

      In response to numerous requests for comments regarding a lawsuit filed against me in Washington, I would like to make the following comments.

      I am the inventor of U.S. Patent No. 6,411,941 relating to software anti-piracy technology, and Ancora is my company.

      I applied for my patent in 1998. In 2002, the patent issued from the United States Patent and Trademark Office. In 2003, I approached Microsoft and had several discussions with a Microsoft lawyer and employees of Microsoftâ(TM)s Anti Piracy group about my invention and the benefits Microsoft could realize by using it. Microsoft declined and said they had no interest in my invention.

      After 3 years of working at a start up without salary and benefits, and with a first child about to be born, it was time for me to move on and look for a job to support my family. We ceased business operations at Ancora in 2005, and Microsoft was the first company to extend me an employment offer. I accepted. In early 2006, I moved my family to Seattle from Los Angeles, bought a house and focused on my new career at Microsoft. I enjoyed my job very much, and Microsoft commended my work and even promoted me.
      When I joined Microsoft, I notified them in writing of Ancora and my patent in both my resume and in my employment agreement. In its complaint against me, Microsoft withheld the portions of these key documents that show this.

      At the same time I was employed at Microsoft, but unknown to me, Microsoft was developing what is now known as âoeOEM Activation.â OEM Activation is installed on computers made by HP, Dell, Toshiba and others (called OEMs) to prevent piracy of Microsoftâ(TM)s Windows Vista software installed on those computers. This work was being done in a different department at Microsoft.

      Now, I personally find there should not be patents at all. It is a shame to see the defamation campaign of Microsoft. The case shows that the patent system does not have any benefit at all for software. Small inventors cannot enforce them against ruthless big companies:

      OEM Activation is a blatant copy of my invention. In fact, the same Microsoft person that I explained my invention to back in 2003 was involved in the development of OEM Activation.

  2. The Prince And The Pauper by ObsessiveMathsFreak · · Score: 5, Interesting

    'If you believed that your patent had been infringed, wouldn't you be tempted to do the same thing?'

    Has the inanity and anti-logic of the patent system finally become so bad that peoples' basic judgement is now impaired. Has the concept of "Intellectual Property" so twisted the fragile mind of the commentators, and public at large, that we now must see it not only as a fundamental right, but as (Paraphrasing DeValera) an institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law and morality.

    Personally, no, I don't see that a patent is so important that I should break not only the law, but also the trust and confidence other people have in me, simply to defend my rights to some obvious "invention". I may be a little behind the times here, but I can't say I would be overly tempted, no.

    --
    May the Maths Be with you!
    1. Re:The Prince And The Pauper by MickLinux · · Score: 5, Informative

      Of course, if you RTA, he didn't break the law. Moreover, he told Microsoft about the company and the patent in writing, possibly depending on the fact that such writing tends to get ignored.

      Moreover, it appears that he allowed his company to lapse (but probably not the incorporation to lapse, since lawyers advise against it), and had basically shut it down due to a complete lack of profits.

      Microsoft is trying to make it appear that he broke the law, to cover the fact that they really did break the law. They took his work, and used it without agreed-upon compensation. Now, I too do not hold patents to be natural law. They are only a construct of the current system that we are in, historically designed to profit powerful companies like Microsoft and other King's Friends. But they are a part of our current law, and Microsoft makes heavy use of them. And Microsoft did break the law, stealing his work without agreed-upon compensation, long before Mr. M. ever applied for employment there.

      I'd say that this one needs to go for full damages. Possibly triple, if the jury concludes that Microsoft has a history of criminal and corrupt behavior (though that would be harder to prove.) Hmmm... I wonder if there could be a class-action lawsuit by those whose work was stolen (including GNU and WordPerfect and Apple and others) against Microsoft. Go through their code and show that the majority of their work was stolen.

      Nah. That'd take an insider to prove it. And then Microsoft would scream bloody murder, even if they had themselves authorized the insider's access.

      --
      Correct Horse Battery Staple: 72 bits of entropy. Enter "Correct H" into google. When it generates the phrase, that's
    2. Re:The Prince And The Pauper by Theaetetus · · Score: 4, Informative

      Now, I too do not hold patents to be natural law. They are only a construct of the current system that we are in, historically designed to profit powerful companies like Microsoft and other King's Friends.

      Intellectual property rights go back the Roman Era. And they're historically designed to protect small inventors from the powerful companies. You're a victim of FUD.

  3. What did this goob think he was going to find? by ACK!! · · Score: 4, Insightful

    I mean I could easily go woo-hoo fighting the man here. I got it in me no doubts. But there is something in legal cases called the Discovery phase and its illegal during a discovery phase to conceal information requested by the court for a case. If he thought Microsoft had information that would have helped his case his lawyers should have asked for such info in the discovery phase and been done with it. The spy cloak and dagger stuff is for the movies and just fucks you over in the real world. If its true he pitched the idea before he was even hired, then don't try to keep working at the same company you are trying to sue. The counter-suit will be coming that is for sure. Easier than firing him. Sue him instead.

    --
    ACK /ak/ interj. 2. [from the comic strip "Bloom County"] An exclamation of surprised disgust, esp. i
  4. Mullor "did the wrong thing"? by drunkenoafoffofb3ta · · Score: 5, Interesting
    AFAIK, He had this technology before joining MS

    He claims he revealed his patent when joining MS.

    MS claim they were allowed to nick his IP rights since he failed to reveal this when he joined the company (although they also tried to licence the technology prior to him joining)

    So the wrong thing was viewing some documents he shouldn't have? Not having your IP rights stolen, then.

    1. Re:Mullor "did the wrong thing"? by Kindaian · · Score: 4, Insightful

      If i recall correctly, MS can't claim such thing in the first place.

      If they tried to license the IP before contracting it, that is more then enough evidence that the IP in cause was pretty much disclosed and of the knowing of MS.

  5. Re:OH CRAP! by commodore64_love · · Score: 5, Interesting

    Yeah, after all, it's not as if Microsoft ever steals other companies (cough Netscape, Corel) ideas or software, or been involved in U.S. or EU patent infringement cases and found guilty. I'm sure they are completely innocent with nothing to hide and would comply with a court order to turn-over information, rather than shred documents.

    Yep.

    The cops routinely use undercover "spying" in order to catch criminals, such as drug traffickers. I don't see why it's wrong to do the same in order to obtain documents prior to their shredding. It might have been smarter to hire a private P.I. (ala Matlock or Perry Mason) to do the dirty work, but otherwise I think you need to do what's necessary to catch the incriminating documents before they become confetti (or before the drugs get flushed down the toilet).

    --
    "I disapprove of what you say, but I will defend to the death your right to say it." - historian Evelyn Beatrice Hall
  6. Insufficient information by skyphyr · · Score: 3, Insightful

    There's no evidence to demonstrate he did these things. So in order for us to assume he's guilty we have to also assume he's precognitive. It also describes it such that Microsoft "found" the evidence. That's got to be inadmissible, right? No chain of custody there it could just as easily be planted by them. Hope the trial has some evidence behind it as there's insufficient to point fingers either way, but more than enough doubt to clear him.

  7. Re:OH CRAP! by expat.iain · · Score: 5, Insightful

    I suppose it all depends on what you see as being the "Right Thing". I would suggest that:

    • Mullor had been speaking to MS about licensing his idea.
    • MS turned down his offer.
    • MS subsequently are found to actually be using aforementioned item.
    • MS now seek a royalty free* license to continue what they have been doing.

    Now, in best Groklaw tradition, IANAL, however this seems to me that when it comes to fairness the guy might have been able to get similar information from 'dumpster diving' and certainly seems to have been vindicated. So what we're really seeing here is:

    • MS get caught with hand in cookie jar.
    • Individual seeks recompense from MS.
    • MS unleash the lawyers and counter sue for good measure.

    It would not surprise me if they try their old dirty tricks and try to put the US case on hold whilst they visit global MS friendly courtrooms to get some judgements onside in other jurisdictions just as they did with Lindows.

    Bastards.

  8. Re:WTF? by gnasher719 · · Score: 3, Interesting

    If you've filed a patent, and you're about to sue someone I'm guessing generally actually you wouldn't seek employment at a company that is part of it. You know, what with it firstly being a completely transparent move, and secondly because you wouldn't be able to defend your patent when you're in jail for corporate espionage.

    But it wouldn't be corporate espionage. So he downloaded documents at work that he had access to as an employee, but that he wasn't supposed to download. As long as he doesn't pass them on or act on them, he can probably be fired, but not charged with anything. However, if the documents contain evidence of wrongdoing on Microsoft's side, that kind of information is not in any way protected by the law. It's not protected by copyright law (the Unabomber tried to pull a stunt like that, claiming that letters he sent to victims shouldn't have been used to track him down because he was the copyright holder), and not protected as a trade secret (because getting away with a crime is not a competitive advantage protected by the law).

  9. Re:OH CRAP! by wytcld · · Score: 3, Interesting

    Yeah, common. I know a couple of "juvenile" book authors who pitched a series concept to Aaron Spelling which they called "Beverly Hills High." It was precisely the plot that Spelling subsequently used for the first season of "90210." But he never credited them nor paid them a thing. It was total theft. Nor were they able to find a lawyer who would give them good odds going up against Spelling about it.

    That's what's so curious about the studios claiming their creative works should be protected from theft. The studios are in large part run by thieves like Aaron Spelling. Their complaint is akin to that of mobsters bothered by any competition with their rackets.

    And in software, Microsoft operates largely on their model. It's not that theft is not in some instances unethical. But theft from someone whose own fortune derives largely from theft? Robin Hood was a good guy.

    --
    "with their freedom lost all virtue lose" - Milton