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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.
It's the end of days!
Rule 29: The enemy of my enemy is my enemy's enemy. No more. No less.
________
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
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.
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?
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
If the enemy of my enemy is Microsoft, maybe I was too harsh in the first place.
No folly is more costly than the folly of intolerant idealism. - Winston Churchill
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.
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.
My blog
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.
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.
Help stamp out iliturcy.
Why pay the lawyers when you can just read the brief & they tell you? EFF thinks overturning the ruling because the ruling is based on "Clear and Convincing" evidence. In other words, a patent is given the same weight as a previous legal ruling - even though nobody is allowed to argue against the patent before it's issued.
First off you don't come in on an equal footing - patents are assumed to be valid. Next, the level of proof required to set aside a patent is higher than in any other form of IP case. The only other time I can find "Clear and Convincing" as the standard is when the court is stripping someone of their parental rights.
Between the 2 of them, it makes it almost impossible to invalidate a patent. When the standard was set, the Patent office was:
At that time, the standard made sense. Under the current process, where an intern with a chemistry degree is approving software patents, it no longer does. Currently, a patent clerk has less than 4 hours to determine if a patent application should be approved or not. Examine some of these patents -- many are upwards of 200 pages of legalese. Nobody can accurately determine the validity of a patent that complex in a few hours - and yet they are given the presumption of validity going in.
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.
Currently, a patent clerk has less than 4 hours to determine if a patent application should be approved or not.
It depends on how you divide up the allotted hours, but 4 hours might be true only for the simplest of arts (generally mechanical arts in very mature fields).
Examiners get a certain number of hours for (more or less) two reviews of an application. The first review usually results in a non-final rejection, and the second results in either an allowance (resulting in an issued patent), a final rejection (if the examiner did a good job on the non-final rejection), an abandonment (if the applicant fails to respond within the time limit), or an appeal (if the applicant appeals to the BPAI, or Board of Patent Appeals and Interferences, the examiner must respond to the applicant's appeal brief). Each of these is worth a certain amount of credit to the examiner, called "counts", and examiners are supposed to get a certain quota of counts depending on their pay grade, the art they work in, and the number of hours they work.
These two reviews (non-final and final, along with the associated paperwork involved in disposal of the case) are essentially allotted a certain number of hours total. For examiners in simpler mechanical arts at higher pay grades, this number could be around 10, but for new examiners in complicated electrical arts, it could be 40 or more. That's not to say that this is enough time to review these cases, and many newer examiners work substantial amounts of voluntary overtime in order to meet their production requirements.
On a side note, all patent examiners must have a degree in an engineering field. Most of the training for the job is associated with the legal aspects of examining patents, but there is some technical training as well (usually higher-level general stuff to familiarize examiners with certain terms and concepts in the art). Also, examiners are assigned to examine a particular art, and they usually don't switch around much, so over time, they become very knowledgeable about their art. Some arts have a tough time with this because high turnover has kept much of the workforce green, but other arts have examiners with 10-20 years of experience examining patents.
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.