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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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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.
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.
An appeal to the Supreme Court is a public declaration. What's more, this has been Microsoft's position for years. For example, it tried the same approach when it was sued by z4 Technologies over anti-piracy measures in XP and Office (that case eventually settled).
Dismissing this as a 'legal tactic' is silly. Microsoft is asking for a nationally binding precedent from the highest court in the country, a court that does not like to overturn itself. If the Supreme Court indeed lowers the standard of proof, then that will likely be the law for decades (barring unlikely congressional action). In fact, making this claim in a Supreme Court proceeding is actually more indicative of Microsoft's beliefs than a press release because, unlike a press release, a Supreme Court ruling would actually change the law. There are no take-backs if Microsoft changes its mind.
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.
Look over your logic a little more carefully. iTunes had no real competitors because record companies refused to license the vast majority of their catalogs to anyone, let alone Apple.
When Apple started iTunes, they needed to convince the record companies that their music wouldn't just be pirated all over the Web. It's not like Apple didn't actually know that it would take about 5 minutes for someone to crack their FairPlay DRM, but they needed to somehow convince the record companies to release their catalogs to them. The DRM gave them a way to do that.
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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.
I think you hit the nail on the head here. It may well be that calculations have definitely shown that Microsoft (and then I would also expect this to apply to other major players) would be better off, financially, with more lax patent rules, so that point gets argued. However, in the meantime, the same "maximize profit" rule is applied in the existing circumstances, leading to patent lawsuits. It's only a self-contradictory position if you believe that everyone's stance on software patents is guided by ideology. If it's strictly about money, it makes perfect sense.
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.
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.