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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."
Electric Frontier Foundation. Man, you're old-school.
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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.
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I think Microsoft and the rest of the software companies have realized that patent-trolls do more harm than good. The thing Microsoft wants isn't profit anymore, they have enough of that but rather influence, because influence will help them with support contracts, where they can make the easy money. All Microsoft really has to do is keep Windows how it is to make there be little to no learning curve and they've won the OS market. Apple still shows no sign of slowing down their overpriced hardware, yes, I know if you put everything that Apple puts in their machines you get essentially the same price, but most people don't have a desire to spend $1,000+ on a laptop that can do, for them, everything a $500 machine or cheaper can. Linux keeps getting more user friendly every day but it still isn't Windows and it still isn't pre-loaded on most machines by default (or when it is, its simply marketed as a free alternative to Windows lacking some features rather than a viable alternative OS).
If Microsoft can keep doing what they are doing, they can continue to rake in profits. Heck, the more patents they squash the easier developing is for them so they can keep more of the profits.
In all honesty, I don't think many corporations enjoy patenting everything, but with the way that the system is, if you don't have the patent you don't know who is going to try to sue you next...
Taxation is legalized theft, no more, no less.
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.
Taking something to the US Supreme Court is a big-assed wager.
Sometimes, you get what you want - say, software patents being invalidated (or at least weakened to the point of near-uselessness). This would be a very good thing.
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.
Of course, like the roulette players who only bet on red or black, but the ball lands on "00"? Sometimes, the result is something totally unexpected, confusing as hell, angers both sides, and only ends up making things more complex and ugly all at once.
Seriously? I'd like to see software patents die and all, but there had better be one HELL of a strong case, aligned just right in circumstance, before anyone starts shoving for a USSC hearing on the matter. Thsi case, in which both parties have every interest towards seeing software patents stay alive and healthy? This case damned sure ain't it. The EFF would've been better served leaving Microsoft to choke on its own blood.
Quo usque tandem abutere, Nimbus, patientia nostra?
I think Microsoft and the rest of the software companies have realized that patent-trolls do more harm than good.
I call bullshit.
Quo usque tandem abutere, Nimbus, patientia nostra?
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.
So is the EFF filing an amicus curiae or an amicus diabolus brief?
No folly is more costly than the folly of intolerant idealism. - Winston Churchill
Except MS actually does stuff.
Not really. Google doesn't make phones. All they do is provide some specifications and some (open) source code. The people to sue are the people making and selling the products, not someone simply providing the tools to make and sell products.
IOW, if you designed a new engine and patented some aspect of that engine, you don't sue the designer of a competing engine that infringes patents, you sue the car companies that put that engine in their cars.
Not that I normally defend Microsoft's behavior, but they did pick the appropriate defendant in this case.
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I call bullshit.
By what standard is Microsoft a patent troll in that instance (or any other instance)? It makes and sells products that incorporate the claimed features, and it licenses the patents to others. It's as far from a non-practicing entity as you can get. It's also suing a company that definitely has the resources to defend itself. It's not using patents as a cudgel against some upstart competitor.
Someone mentioned that Microsoft only sued one company. The others Android handset makers likely have licenses, especially given that they make Windows Mobile / Windows Phone 7 phones.
I suppose you could define a patent troll as "the patentee in a patent infringement lawsuit," but that's not a very useful definition.
For once I hope Microsoft wins a legal battle, and that's the last thing I would ever expect to feel. I must be going crazy or something. Must be spending too much time on these software projects.
Although if I were Microsoft at this moment, I'd be paying the lawyers overtime to find out why EFF thinks overturning this patent ruling is a good thing. Last I heard EFF wasn't too big on patents and they're not altogether retarded, so... anyway, if I were a Microsoft lawyer I'd be worried enough to make sure I knew where all the chairs were...
Microsoft sued HTC before and got a settlement. They're trolling. These lawsuits are nothing more than advertising for their Windows Phone 7 phone, which offers indemnification against lawsuits from... them. "That's a nice phone you got there. It would be a shame if anybody sued you over it."
Microsoft is suing their own customers here, and not retail customers, but billion-dollar manufacturing partners. That's not a good plan. SCO tried that plan and even with the Microsoft-backed investments from unsuccessfully indirect partners, it didn't work out for SCO.
The patents are bullshit. They're software patents, and even Microsoft admits almost all software patents are bullshit. Microsoft is looking for help from all of us to solve this argument for them both ways in favor. It's a fool's game.
If this is their plan to put Windows Phone 7 over then they're hosed. "Buy it or we'll sue you" never works.
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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.
Not just on the part of the EFF and Apache Foundation -- the same thing can be said for Microsoft as well. They must know that if their motion is successful, it helps their competitors just as much as it helps them -- but they have decided to proceed regardless.
Selling software is the easy money, support contracts are relatively hard work in comparison.
With software you can produce more copies extremely easy, especially if your just sending out license codes rather than physical media. You have virtually infinite scalability without increasing costs, thus you can reap massive profits. Also above a certain threshold, the development cost of software becomes covered and the ongoing costs are so trivial that its effectively a 100% profit margin.
Support contracts on the other hand require staff on hand to answer the phone and deal with the customers queries, if you have too few staff or staff who aren't sufficiently capable of providing the support the customers are paying for you will have major problems so as you get more customers you also need more staff.
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Amen, man. I'm a first year law student. NOBODY says they want to be a criminal defense attorney.
Every time we hear a speaker talking about a criminal case, they say the same thing: "Well, I didn't want to be a criminal defense attorney, but then..."
Kinda funny how jaded class can make a person, even only 7 weeks in.
The Free Software community is not the Anti-Microsoft club; it is the Anti-Stupid-Restrictions club. If Microsoft is fighting a stupid patent, they deserve support, no matter how deliciously karmic it is.
Like most legal departments of successful large corporations, the legal department of Microsoft does what is in its own interests more reliably than it does what is in the best interests of its corporate master. When there is money to be made from trolling, it will troll unless swatted down by the corporate overlords. Who are often too busy to notice, because they're making about 1,000 times as much money selling products as their legal department ever could make from trolling. We're talking Microsoft here: a product (legal trolling) that doesn't gross a billion a year is almost beneath notice.
Defending your principles though it benefits your enemies, is in my opinion highly admirable.
If you don't defend your principles unto death (or similar) they aren't principles, they're just things you think are good ideas.
"You're right," Fisheye says. "I should have set it on 'whip' or 'chop.'"
...is this (lowering the bar) really the goal, ie lowering the bar or actually getting rid of software patents? To me, 'lowering the bar' says that software patents are valid, because we have 'agreement' as to what constitutes a line in the sand for good/bad patents. Somethings rotten in Denmark (& elsewhere). I think lowering the bar IS what M$ is really after.
A man spends the first half of his life accumulating stuff, the second trying to get rid of it all.
Does anyone else think that MS doesn't have a coherent legal strategy? I mean yesterday they sued ITC for patents that they claim Android violates. The patents in that case look pretty general and weak to me. With this brief they are essentially asking for the barrier to invalidate patents to be lowered. If the appeals court agrees with them then they made it much harder on themselves with the ITC case. Opposing counsel will generate bring to the court's attention when you've made their arguments for them in another case.
My feeling is most likely MS legal doesn't have a full grasp of all the cases they have ongoing. Also sometimes they use outside counsel (especially for appeals) so the right hand doesn't know what the left is doing.
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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.
I think they had a great strategy if you look into it deep enough.
They want this patent controversy and they want news of it in the main stream press because they are selling their windows 7 version of phone operating system and one of the key selling point they are making seems to be patent suit indemnification. With McBride and SCO Group more or less gone, the don't have a puppet company to show the dangers of patent suits. So they defend this case as illegitimate to show that due diligence isn't always enough, push their own case as legitimate, and claim you can avoid it all by using windows 7 and certified Microsoft products.
What I mean is if the appeals court rules for MS, the lawyers in the ITC case (if they are worth anything) will take the appeals ruling and use it against MS. MS can't really argue against themselves. Unless there is a settlement the ITC case will take years whereas the i4 case will spend less time since they are already in the appeals stage.
Well, there's spam egg sausage and spam, that's not got much spam in it.
What you and everyone else forgets (including the EFF) is that this "preponderance of the evidence" will work both ways. In the end the people with the money will win the patent suits because they can bring more and bigger guns to the table. At least with "clear and convincing" the little guy has a chance--to defend against a criminal monopoly such as Microsoft that has a habit (shown over the past 20 years) that they'll steal anyone else's work and dare you to defend yourself in court.
You can lead a man with reason but you can't make him think.
It is not. But when suits fly to and from those proposing this sort of change then certainly they have ideas beyond what you think the benefit is. This will make it easier for Microsoft to sue other, believe it or not, because they have more money. In cases where preponderance of evidence comes into play it is historically the money side that wins.
You can lead a man with reason but you can't make him think.
Well, here is the problem. Not really a problem but... You are looking at this logically from a right and wrong perspective. Don't do that just for a minute or two. Look at is specifically from a monetary gain perspective with most logic thrown out the window.
You see, MS most certainly can argue against itself in two unrelated cases covering the same areas of sorts. It's not likely that the differences in arguments will ever cross cases until one has been decided and that's only if they aren't past the point of offering evidence (the one court will just use the ruling of the other without caring about how what was argued).
Now, here is where logic gets completely turned upside down. If MS can perceptibly make more revenue from windows 7 for phones sales because of the Fear, Uncertainty, and Disinformation, then if they would lose in either patent dispute either way the cases swing, for any reason, it's still beneficial to them. It's monetarily logical for them to throw a roman pretending to be a christian to the lions in order to pack the stadiums so to speak. What I'm getting at is, it doesn't matter if they lose both cases for any reason. The big money will be somewhere else which is most likely why they are dragging both cases out- it exemplifies their indemnification as a value greater then the costs of using windows 7 for the phone over a free and open platform or even a cheaper pay platform. the patent case is more or less the bread and circuses while the real action is going on inside the emperors hidden life.
Sorry to use Roman analogies to explain that. It's just that I first learned of the art of willful deception or the attempt to hide the real issues with the examples of bread and circuses and thought it might translate this quite nicely. It's really a slight of hand trick, they are saying look here, why something else is happening, all along they are trying to charge a fee to see the show. Or at least that's how I see it.
You see, MS most certainly can argue against itself in two unrelated cases covering the same areas of sorts. It's not likely that the differences in arguments will ever cross cases until one has been decided and that's only if they aren't past the point of offering evidence (the one court will just use the ruling of the other without caring about how what was argued)
Normally when it is brought up in court, the party that has argued against itself will clarify why each case is different and why their arguments make sense in each case. But unfortunately for MS, the appeals case is arguing for a broad lowering of standards of patents. The specific ITC case falls under the broad appeal. In recent history, IBM and Novell routinely notified the respective courts when SCO argued against itself in different ongoing cases.
Now, here is where logic gets completely turned upside down. If MS can perceptibly make more revenue from windows 7 for phones sales because of the Fear, Uncertainty, and Disinformation, then if they would lose in either patent dispute either way the cases swing, for any reason, it's still beneficial to them. It's monetarily logical for them to throw a roman pretending to be a christian to the lions in order to pack the stadiums so to speak. What I'm getting at is, it doesn't matter if they lose both cases for any reason. The big money will be somewhere else which is most likely why they are dragging both cases out- it exemplifies their indemnification as a value greater then the costs of using windows 7 for the phone over a free and open platform or even a cheaper pay platform. the patent case is more or less the bread and circuses while the real action is going on inside the emperors hidden life.
If I were to win as Motorola, I would not only ask for lawyers fees (which could get big) as well as punitive damages. I would try to prove that MS knew they didn't have a case especially if it were to argue against itself early on that they did it for FUD. Judges generally do not like it when their courts are being used for things other than the pursuit of justice.
Well, there's spam egg sausage and spam, that's not got much spam in it.
IOW, if you designed a new engine and patented some aspect of that engine, you don't sue the designer of a competing engine that infringes patents, you sue the car companies that put that engine in their cars.
Why? By that logic a sound business strategy would be to develop a product based on patented technology and just sell it to people that include it in their products so they're the ones that get sued.
They're trolling.
What's your definition of 'trolling' in this context?
I agree. But I also think that some sort of outside suit could be taken against MS is this turns out to be true. It would seem to me that they could look for lost sales and other damages that might have occurred because of this as well as some potential causes of action from google or other organizations that offers phone software.
The action is not a direct dialog with the respondent and it has no hope of success with the target. It's an action to elicit motion from an outside audience. They're not trolling Moto here, they're trolling everybody else. If Microsoft gets other licensees for their IP, or some traction with WP7, the bait is took. Maybe "Chumming" is a better word than trolling, but trolling is a better understood symbol.
Microsoft has no hope of successfully suing Motorola over cellular software patents. They have to know that. Motorola invented the cellular phone. Moto has tens of thousands of patents in the field, and emerging technologies Microsoft must have to survive, and billions of dollars. Moto has more engineers who actually invent things than Microsoft has lawyers who patent obvious implementations of others' inventions, but Moto has hundreds of lawyers too. Moto has honest partners who need them to continue to invent things, notably the US Department of Defense and NASA. Microsoft might as well sue Intel for all the good this will do them.
So yeah, it's a troll in that the lawsuit is a direct statement that is intended not to convice the direct counterparty, but in the hope of eliciting a response from the audience - much like a trolling lure isn't to feed a specific fish. It's a simulation of bait to catch all of the fish that might bite. Microsoft's not going to like the response. They've got a great white shark on and they're going to need a bigger boat. But fine, that's part of the game. It's scary only in the implication that Microsoft would dare to do such a thing for short term gains when it's obviously a suicidal move in the longer term. I want to see this play out, but it will be fifteen years before we really know what happened here.
Regrettably when Microsoft agrees to settle the issue we're not going to know how much they paid for this misstep because that's not how such things are done. The settlement is always secret, and Moto has too much class to rub their nose in it.
The thing is, repairing this relationship is going to cost more than money and it won't be over when the settlement is made. The executives may come to a legal settlement, but the people who actually make stuff at Moto are now energized with the idea that Microsoft just called them a bunch of thieving bastards. I wouldn't want to be on the receiving end of that energy. Those guys know stuff. Deep stuff. They know how to invent things, and I think the things that are hurtful to Microsoft will be on their minds for many years no matter what the folks in suits do.
Help stamp out iliturcy.