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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.
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.
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
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.
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.
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.