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EFF, Apache Side With Microsoft In i4i Patent Case
msmoriarty writes "Looks like Microsoft has gained some unlikely allies in its ongoing (and losing) i4i XML patent dispute: the Electronic Frontier Foundation and the Apache Software Foundation. The reason? Microsoft has decided the strategy for its Supreme Court appeal will be to argue that the standards of proof in patent cases are too high — this from a company that has thousands of patents it regularly defends. The EFF explains in a blog post why it decided to file the 'friend of the court' brief on Microsoft's side."
Rule 29: The enemy of my enemy is my enemy's enemy. No more. No less.
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Entranced by anime since late summer 2001 and loving it ^_^
Microsoft has decided the strategy for its Supreme Court appeal will be to argue that the standards of proof in patent cases are too high — this from a company that has thousands of patents it regularly defends.
Msmoriarty makes a logical leap here without providing any supporting evidence. Of course Microsoft defends its patents - given the current legal landscape, any business that doesn't do so is just plain stupid. It doesn't matter what they think the law should be; they have to behave according to how the law currently exists.
The general principle is somewhat similar to how Apple sold DRM-encumbered music files for a while, even while publicly advocating for the end of DRM. Of course in that case it wasn't a matter of law; it was a matter of the existing policies at the companies who held the rights to the music. Apple did what it had to do from a business perspective even though it wanted the circumstances changed.
Note that this doesn't prove that Microsoft believes patent law needs to be changed, either. We don't really know either way, and for msmoriarty to assume otherwise is without basis. Unless Microsoft makes a public declaration one way or the other, this simply amounts to a legal tactic - nothing more.
#DeleteChrome
Excuse me? How is making it easier for ALL to invalidate bad patents in any way, shape, or form a bad thing? You know Linux is a kernel, not a ball club. Zealotry CAN be taken too far. I personally think RMS is too extreme but if IBM and Oracle were to suddenly back him for helping to lower the bar on getting rid of the mountains of bad patents that have been issued? I'd be cheering the man on every. step. of. the. way.
It has NOTHING to do with whether you like or dislike MSFT or ANY company for that matter, it has to do with lowering the burden of proof from "clear and convincing" which even with prior art is a VERY high hurdle, to "a preponderance of the evidence" which is roughly more than likely you are right, or 51% to 49% if you prefer. If the SCOTUS hears it and MSFT wins? MSFT don't have to write a big check. Big whoop for them. But for ALL of us it will be a BIG win as it will help make it easier to start to get rid of the garbage mound of bad patents and will most likely make trolls think twice before going to court. That is good for everybody and the Apache Foundation and the EFF knows this.
ACs don't waste your time replying, your posts are never seen by me.
It's interesting to notice M$ is suing Motorola instead of Google.
This is patent troll behaviour if I ever saw one: why sue ONE if you sue many and make a lot of money, erm, licensing agreements?
This must be some quite weird long term strategy from EFF, one I cannot even understand...
That's not a contradiction. For instance, that's the exact behaviour you'd expect of a person who ranked three hypothetical conditions like this:
1. Nobody can be a patent troll.
2. Everybody can be a patent troll.
3. Everybody, except you, can be a patent troll.
Except MS actually does stuff.
However - any outcome other than what you desired will either make it im-fucking-possible to change later. For instance, a bad outcome would be for software patents to not only get validated, but strengthened to the point where any patent holder (no matter how specious the patent), can promptly send any company they want straight into fiscal hell. Like today, only 10x as worse.
I don't think you understand the procedural posture of this case. This is a (potential) Supreme Court case, which means the case will be about the narrow issue framed by the appeal and grant of certiorari. It is not about software patents per se. It's about the standard of proof of invalidity in all patent cases, specifically the standard for prior art not considered by the Patent Office.
Here, Microsoft is asking for the standard to be lowered. i4i will likely ask for the Court to maintain the status quo. In all likelihood, if the Court wants to maintain the status quo then it will simply deny certiorari and let the lower court decision stand. There is almost no chance that the Court will raise the standard beyond the existing clear and convincing standard. This is for several reasons, not least because there isn't really any standard above C&C but below the criminal standard of beyond a reasonable doubt, and it's highly unlikely the Court would create a new standard just for patent validity.
There's really no downside to supporting Microsoft here if you want patents to be easier to invalidate, especially because you know Microsoft will put substantial resources behind making sure it puts its best foot forward. For one thing, if it loses it will have to pay a $240 million judgment. That's a pretty big incentive.
Being defended by the ACLU. Sure, it's even more involvement from two completely disparate allies but it struck me as truthful. Sometimes you end up making alliances with your next to worst enemy, so you can make the world more free for us all.
Indeed, I also believe it is about integrity. Defending your principles though it benefits your enemies, is in my opinion highly admirable.
Well, they're not playing devil's advocate. (http://en.wikipedia.org/wiki/Devil%27s_advocate).
The "devil's advocate" is a fascinating role: when Roman Catholics try to have someone declared a saint, it was the devil's advocate's role to oppose the practice. The office was abolished last century, and replaced with the "promoter of justice". It was an _embarassing_ job: discrediting miracles and casting doubts on the beliefs of devout people about their favorite potential saint is thankless work.
The results are predictable. Much like the patent office failing to challenge software patents, unless the flaws in the potential saint's proposal are obvious and profound, sainthood is now much more easily granted. The result has been an explosion in the number of new saints, from fewer than 100 in the first part of the 20th century to over 500 in the latter part.
Unfortunately, sort of genuinely skeptical agent is vital to certifying only valid saints, or patents. As Microsoft and EFF and the Apache Foundation are claiming, it's clearly not happening at the patent office. Perhaps the patent office could hire some Jesuits? They tended to provide devil's advocates, before the office was discarded, and people with experience being so "jesuitical" might do wonderful work scraping the legal clutter off of a patent application to expose, and discredit, invalid patents.
There are some differences with this case compared to a basic patent troll case.
First off, i4i actually had a product that was shipping, though in a targeted market. A patent troll is an organization that collects patents for the sole purpose of suing other organizations. The lawsuits themselves become the revenue model.
Second off, i4i tried to work with MS for a period of time prior to MS breaking off communications with i4i and building their own system. This makes this whole thing a little more than a basic patent violation, but it moves into a misappropriation of trade secrets; and who knows how much actual code was misappropriated.
The original purpose of the patent system was to protect the small inventor from having their inventions from being exploited by large companies that have the finances to saturate the market and lock that inventor out of being able to benefit from the invention. In a lot of ways, this has been usurped by large companies cross licensing to each other and largely keeping themselves out of any significant patent disputes, as well as using the litigation system as a way to bankrupt inventors that don't have the capital resources forcing them to often just give up their patents for almost nothing. (NOTE: this comment is regardless of what a person thinks of software patents specifically, it is just the intent of the patent system in general).
What MS did was extremely unethical, not because they violated a patent, but they used a previous business relationship to do so. That on its own deserves severe penalties.
PS. As for my personal feeling about software patents, I am not against them per se, however because of the nature of the software industry, I agree that the system has gotten out of hand with the majority of patents being issued that should not have been issued. Maybe a possible suggestion to fixing the situation would be to have variable length patents. The 17 year patent was probably applicable 200 years ago, however today it is not all that useful for software patents where the cost of entry into a market isn't all that high. Something like a mechanical patent would remain at 17 years, products that have a huge cost/time of entry such as pharma (which may take 15 to 20 years just to get onto the market) could be longer, and software might get say a 3 to 5 years of protection. With that shorter time period, the inventing company gets the lead time to market the product, but not so long that it becomes irrelevant long before the patent expires (GIF was on its way out before the patent expired for example). Another issue with the GIF patent specifically is that the LZW patent was a component of a larger patent. A patent should be treated as a unit, and not be allowed to be broken down.