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US Gov't Sides Against Microsoft In i4i Patent Case
Julie188 writes "In the ongoing patent infringement case between i4i and Microsoft, i4i has won a powerful ally: the US government itself. The US solicitor general, which represents the federal government in the Supreme Court, on Friday filed an amicus brief in support of i4i, saying that the US Patent and Trademark Office should not be second-guessed by a jury. i4i, which won a $290 million patent judgment against Microsoft, has now accrued 22 amicus briefs in its corner, representing more than 100 companies, organizations and individuals, including venture capitalists, individuals from the military and now, the government. Meanwhile, Microsoft has so far lined up 20 amicus briefs, representing about 60 companies and individuals, including Google, Apple, Cisco, Intel, Red Hat, the Electronic Frontier Foundation and 37 law and economics professors. At issue is how much evidence is required to invalidate a patent."
is Electronic Frontier Foundation. Actually, i think u.s. patent office should not be second guessing EFF, since their competence and understanding of these issues far surpass patent offices', leave aside any corporations'.
Read radical news here
EFF is a private organization. Right now you respect them. By morning they could be a wholly-owned subsidiary of a holding company owned by Microsoft. And I'm not saying which morning.
saying that the U.S. Patent and Trademark Office should not be second-guessed by a jury.
Why not? If 12 people who weren't smart enough to get out of Jury Duty can see the obviousness of some patents why not let them have their shot? Here on /. we almost always second-guess the USPTO.
There's no agency in government that should be accorded the singular privilege of not having to be second-guessed by a jury.
Excuse me, they have "Foundation" in their name. They are damn well respectable.
the lawyers.
An i 4 an i... as they say
...which usually means I'm wrong, anyway, but didn't i4i have a specific and very valid claim to a patent here?
Software patents are bad, no doubt, and we're seeing a horrible precedent set, but wasn't the specifics behind their use of XML in documents legitimately infringed by Microsoft?
I'm torn here. First, I really don't like the idea of being sued over code I may write.
HOWEVER, I do like the idea of suing any bastard who's masochistic enough to implement XML the way Microsoft did in their office suite.
Non impediti ratione cogitationus.
EFF is a private organization. Right now you respect them. By morning they could be a wholly-owned subsidiary of a holding company owned by Microsoft. And I'm not saying which morning.
You were probably trying to be funny, but the EFF is not a private organization the way you are thinking. You cannot just buy out a 501(c)(3) and start controlling it. It's run by a board of directors and a set of bylaws that must be followed. Unless the directors end up disillusioned with the organization or its mission, there's really not much an outside party can do to influence it.
"Somebody has to do something. It's just incredibly pathetic it has to be us."
--- Jerry Garcia
It's inspiring to see that Microsoft, fighting for the common good for the first time in its existence, is destined to fail for one of the few notable times in its existence.
for Microsoft's corporate philosophy.
The US government have made it clear that we have no inalienable rights; any we do not defend vigorously will be taken.
In theory, you're right. In practice, not so much. Lots of money can (and often does) fundamentally alter the practices of many non-profits. Sure, they're nominally non-profit, with bylaws and directors. All of which/whom can be altered or replaced. If pallet loads of cash start flowing from the general direction of a Borg cube, enabling the construction of fancy new offices and much better compensation for the officers... well, you can see how that could happen. Many a nonprofit has been subverted by lots of money and infiltration by unscrupulous individuals.
This is a terrible precedent.
Truth, Just Us, And Hatred For All Mankind!
Posting advertisements on web forums is infringement against this AC's patent; you are hereby notified to cease and desist immediately. Do not attempt to hide -- your IP address will be subpoenaed forthwith, and as precautionary measures we will burn your fucking house down.
Sincerely,
Anonymous Coward's lawyer
Didn't the Church of Scientology do something like this to the Cult Awareness Network?
93rd rule of Slashdot: No matter how obvious my sarcasm is, my comment will be taken seriously by someone.
Can we destroy the USPTO please? I am a developer and I read the patent. It sounds like they are trying to patent something like XSLT and nothing more. In the damn patent they describe a bunch of prior art. Why? Because developers map crap all the time, they create domain specific languages and do other of those things on a damn near regular basis. I could not even count the number of times I created mapping documents to "store metacodes of the document in a separate and distinct storage in a structure called a metacode map." I probably should not admit this cause I may get sued, but I call those things configuration files, transforms, and the such.
"Delivering a complete document would entail delivering both the content and a metacode map that describes it." I see this pretty much every day in code. I mean this could be describing the relationship between an HTML document and CSS. Or XML and an XSLT. The statement in and of itself is so stupidly obvious as to be painful. I could probably go back to a thousand years BC and find evidence of such invention for like oh I don't know how we learned to read hieroglyphics.
And further to this nonsense, this sounds an aweful lot like what Adobe does to create a PDF file, but the PDF format is much much more detailed. And then the patent goes into describing a markup language with tags an everything. If this is not obvious and does not have previous art, then I am copyrighting the use of { and ; in code. I'll sue every C based language out there.
The sides are even more telling. A bunch of idiot lawyers, politicians, venture capitilists vs the biggest names in tech. And you want to tell me this is a valid patent? I mean granted, the big names in tech have more than a few questionable patents. But this is just yet another example of the failure of the USPTO and why unless a patent for software can show that it is not derivative in any way and is wholly unique and not in use a patent should not be granted. The burden of proof should be at the time of applying for the patent, not getting the patent than having to prove it is inane.
Meh. You could be right in theory. Certainly there have been some neophyte political organizations set up by well-meaning but naive activists that were able to get subverted by establishment types because they were not careful in structuring their by-laws and board.
None of that really applies to an established organization like the EFF. They are pretty well protected and have a source of revenue that would be difficult to overcome. If you know of any similar organizations of the type that were able to be subverted by the interests they were opposing I would love to hear about it - I actually doubt you can come up with any.
"Somebody has to do something. It's just incredibly pathetic it has to be us."
--- Jerry Garcia
Microsoft is not always wrong.
Someone needs to question the US Patent Office and the whole patent system. It's current state lies somewhere between broken and totally "busticated". If Congress or the Courts won't man up to the challenge I say let the Jury do it. I don't care if your Democratic or Republican if your not pissed off your not paying attention
Too bad they're biased against software patent...
Tell you what: it won't be hard to figure it out if the EFF ever sells out. But until then, until we see one single shred of evidence that the EFF is anything but what we all know them to be, which is a highly-reputable organization dedicated to keeping technology and culture as free as possible (free in more than one sense) who has looked out for the best interests of every single one of us here on Slashdot (except maybe a few of those people who have just registered here as part of New Media Strategies' (and other companies of that type) ongoing attack on online communities) - until we get the merest hint that they're not doing a great job and are not exactly what they say they are, then we should assume that any comment here trying to spread FUD about the EFF is probably part of one of those corporate astroturfing outfits (like New Media Strategies and Reputation Defender and others like them).
I'm glad I read this. It's a reminder to send a little chunk of my income tax refund to the EFF for the great work that they continue to do.
You are welcome on my lawn.
Is there some secondary way of establishing patent royalty eligibility without resorting to an expensive legal battle? If some company claims that my product violates their patent, it appears the only options are for me to go along with it and pay their royalties, or to see them in court.
To me (an Australian) the litigiousness of US culture and business is just as broken as the patent system, and it is sad to see this trend spreading here. It is a shame that judges can't (when appropriate) just say, "Stop being a greedy bastard!" and throw people in prison for pursuing money that they clearly don't have any right to. (I know this idea is plagued with problems but I reserve my right to be idealistic on occasion :).
It's not a bug, it's a lepidopter!
Hey look! It's one a them New Media Strategies types. He's here to make it seem like EFF is the one doing something wrong.
Now I wonder, who would benefit from spreading FUD about the Electronic Freedom Foundation? Anybody care to start a little list?
I think it's time that we got real familiar with New Media Strategies and Reputation Defender and other online astroturfing units. Because if we don't figure out a way to thwart their dirty business, which is basically a much uglier and much more insidious version of spam, except with the intent to harm, the internet is going to become completely worthless as a place to get even the most basic information. I mean, we know not to believe everything we read at Wikipedia, but this is raising the stakes to a whole new level of bullshit. Everyone who runs a social media site has a responsibility to figure out how to keep these new mil-spec astroturfers out of the pool if they hope to exist into the future. And every one of us has a responsibility to out and thwart these new blastroturfers because there is value in the variety of online communities, including Slashdot. If you didn't think so, you wouldn't be reading this.
You are welcome on my lawn.
Here's why: I am quite very strongly against stupid patents, and software patents tend to fall into the "stupid patent" category. Now the i4i case seems to be the strange and unusual situation where a company (i4i) is honestly competing as best as they can, gets ripped off in a completely legal way by the big bully Microsoft, and turns into a patent troll and wins - so two wrongs produced a right.
But when Microsoft argues that it should be made easier to invalidate bogus patents, that is an absolute good thing. Yes, it would also hurt i4i who deserves a payout from Microsoft, but not one for patent infringement, but the people hurt most would be patent trolls.
That's a great questions. I've seen a fair number of comments lately and a few topics that seem completely overrun by loud overbearing folks whose beliefs make me wonder if they're professional astroturfers.
The Solicitor General's position, though, has support in actual legislation. (See 35 USC 282: "A patent shall be presumed valid.") If patents are entitled to a presumption of validity, what possible presumption could be said to exist in a system where mere preponderance of the evidence can render it invalid?
I can accept that few people here like the patent system, but surely we like litigation less. Which defendant settles if they think they have some chance of crossing the 50% line? Which valid patent, mistakenly invalidated by a jury, can see that corrected on appeal- when can 'no reasonable jury have found they didn't cross'?
Actually, i think u.s. patent office should not be second guessing EFF, since their competence and understanding of these issues far surpass patent offices'
Not dissing the EFF here, but are you serious? The EFF is well respected, but they aren't the US Supreme Court. Just because they file a brief doesn't mean that that's the last word on the subject.
I scanned one of the briefs filed in support of Microsoft. Wow... this patent stinks, but it's no worse than thousands of others filed on a daily basis in the software business by Microsoft and the corporations that filed amicus briefs on their behalf.
This time it was Microsoft that stepped on the improvised courtroom device.
Maureen O'Gara, is that you?
Or maybe "Kenneth Saborio?"
--
BMO
Tell you what: it won't be hard to figure it out if the EFF ever sells out.
Absolutely! It is crazy (dare I say paranoid) to pre-emptively denigrate an organisation because one day that might turn bad. Judge them by their actions today.
However, I can't completely agree with your next sentence because 1) it is 150 words long, and 2) complaining about FUD by accusing people of being astroturfers or shills is itself FUD. This argument is known as "playing the man, not the ball". Just because somebody has a different opinion than you does not mean that they are being paid to argue against you. It is something that we are seeing around here more and more these days.
Patent and Copyright law is so screwed up, its beyond belief. 1. There should be no patents on computer software. 2. Patents should run for a single term with a maximum term of 20 years (PERIOD!). If company A has a patent that company B wants, they can sell it, but every time a patent is sold, the remaining time on the patent is cut in half. A brand new patent, sold the next day, and again the day after that, is now good for 5 years. If its sold again 6 months later, its then good for 27 months. Copyright should be good for a single term of 20 years, no sales or transfers allowed. The intellectual property laws have caused innovation to suffer (and everyone else as well). Its been a boon for wealthy corporations, and the lawyers they retain. Everyone else (society in general) pays and suffers because of their greed and governments willingness to bend over anytime they want ever more of whatever they want. Congress critters and Senators get set up for life, and everyone else pays and pays and pays. No one is looking out for the general public.
You find that some really smart people sit on juries. Not every jury, not all the time, but it isn't some kind of "dummies only" thing. Heck, look at the Terry Childs case. There was a CCIE on his jury. Not only does that mean a very smart person (it is hard as hell to get) it is an education and experience right on point of the trial.
Actually, when you do a little lookin' you find out that blue collar workers are often under represented. Why? Well jury duty pay is laughably low. It doesn't cover parking in some places. We are talking $10 per DAY in some states. Now while your employer is required to give you time off to go, they aren't required to pay you. So what happens? Well people with salaried jobs are generally set. Their employer gives them the time, and they get fully pay. Usually doesn't count against vacation or anything. So while it might be a hassle, it is fine. Blue collar workers? They can go, but no pay. They take a massive pay cut to do their civic duty. These are, of course, the people less able to afford such a pay hit.
So what happens? They skip, of course. What else can they do?
This "People too stupid to get out of jury duty," is something partially perpetuated by Hollywood but mostly by jackasses who think they are so much smarter than everyone else (and almost always are not as smart as they think they are). Do you get some dumb people on juries? Sure, because a jury is made up of regular people and not all people are smart. However it is less than you'd think.
Also this idea that they weed out anyone with the slightest problem (or intelligence) is bunk. For extremely important cases, jurors get vetted pretty hard and there are a lot of challenges allowed by lawyers on both sides. For normal cases? Has to be a pretty good reason or the judge won't accept a challenge.
Ah, but if you look at the new breed of astroturfer, it's not about "opinion", it's about misinformation. The comment to which I was responding did not just say "I don't like the EFF" which is an opinion, it was that "the EFF spreads so much FUD" which is simply a lie. You can say a lot of things about the EFF, but "spreading FUD" is not one of them.
And you say "It is something we are seeing around here more and more these days". But besides "playing the man not the ball" how would you suggest addressing it? We are seeing entire stories and comments threads made unreadable by a first section of over 100 comments alternating anonymous cowards cutting and pasting and newly-minted UIDs dropping in to keep the thread expanded. And there is a marked similarity to the stories that attact these trollbombs. If you go to other sites where technology is discussed, you will see the same attacks in the same manner often on the same stories. I used to believe as you do, that claiming "astroturf" was just a way to marginalize disagreement. But as the companies that are engaged in this organized astroturfing grow, they are hiring people who are less skilled (who are probably making minimum wage) and they're starting to get a little obvious about it.
I understand what you're saying, but I'm getting a little worried that by the time we come up with a response, it's going to be way too late.
You are welcome on my lawn.
Actually the people in the EFF probably understand I.P. law in it's current form and it's consequences better than those nine in the supreme court. Donning a black rob doesn't make a person omnipotent. Sure what they say is THE LAW(TM) but it's not always THE RIGHT THING(TM).
So 12 citizens are fine to decide the life or death of a fellow citizen, but not up to making patent decisions?
I'm fairly certain the basis behind our entire legal system is that 12 responsible citizens, armed with direction from a judge regarding the law, can reach reasonable decisions.
The idea that some small faceless government bureaucracy or functionary can make better ones....that road leads to despotism.
As sad as it is, I would rather the govenment just pump huge amounts of money into patent office so that they can hire lots of good lawyers to stop bad patents before they exist. I mean we have to pay for all these lawyers anyway everytime we buy a product, as well as receiving less competitve products. We might as well just simplify the system by moving all the lawyers into the patent offices, then at least products don't suffer.
"Bias against software patents" and "having an understanding of software patents" are essentially equivalent, with an exception for patent lawyers whose business it is to execute the cognitive dissonance of doing the latter while avoiding the former.
[citation needed]
We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
If 12 people "of virtues true" are good enough to decide over life and death of a person, they are more than capable to decide over some insignificant patents.
We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
If you know of any similar organizations of the type that were able to be subverted by the interests they were opposing I would love to hear about it
ISO?
Just because somebody has a different opinion than you does not mean that they are being paid to argue against you. It is something that we are seeing around here more and more these days.
This phrase is also something I've seen a lot lately, and not just here - it's across all of the tech sites I read.
You should get your Reputation Management strategist to write you a new script...
Yes, it has gotten quite bad lately - almost precisely at the 2mil-uid mark here.
Slashdot tries to hold fast to the no-censor policy, so they're rather under fire.
The only system I can think of is some kind of turbo personal comment-blocker like adblock where the comment doesn't come back when you reload the page.
My first Journal Entry ever, in 8 years! http://slashdot.org/journal/365947/aphelion-scifi-fantasy-horror-poetry-webzine
Any source of revenue can be overcome by a sufficiently larger source of revenue.
-- T. Jefferson
Confucius say, "Find worm in apple - bad. Find half a worm - worse."
these new mil-spec astroturfers
You may be more right than you intended.
...For a defense contractor with ties to the federal government, Hunton & Williams, DOD, NSA, and the CIA - whose enemies are labor unions, progressive organizations, journalists, and progressive bloggers, a persona apparently goes far beyond creating a mere sockpuppet. According to an embedded MS Word document found in one of the HBGary emails, it involves creating an army of sockpuppets, with sophisticated "persona management" software that allows a small team of only a few people to appear to be many, while keeping the personas from accidentally cross-contaminating each other.
http://www.dailykos.com/story/2011/02/16/945768/-UPDATED:-The-HB-Gary-Email-That-Should-Concern-Us-All
What is the world coming to? MS on the right side of a legal debate? Or is it more about avoiding to reap what they sowed? I'm all confused here :-).
Insert
"... representing more than 100 companies, organizations and individuals, including venture capitalists, individuals from the military and now, the government." vs. "... Electronic Frontier Foundation and 37 law and economics professors". Capitalists, military and the government vs. the EFF and 37 law and economics professors. Who could win this one? I take 50 to 5 for the guys with the money.
http://www.mueller-public.de - My site http://www.anr-institute.com/ - Advanced Natural Research Institute
Which of two their major sources of revenue are you talking about?
Google?
Or GPL lawsuits?
45 5F E1 04 22 CA 29 C4 93 3F 95 05 2B 79 2A B2
"the US Patent and Trademark Office should not be second-guessed by a jury".
I don't think the USPTO should be guessing in the first place.
Thank you so much for illustrating my point. That phrase may be common, but calling people shills and astroturfers is far more common. Perhaps if fewer people resorted to name calling in lieu of making a logical argument then that phrase would not have to be written over and over again.
It is true that we are seeing a lot of messages that defy credulity by posting way too early for a non subscriber in a one sided manner. I almost fell into the trap of saying that we have been seeing a lot of posters doing that, but I suspect that it is all the work of one or two individuals with multiple accounts.
In this case however, the pattern of the original message was less like an astroturfer, and more like one of those people who imagines a complicated scenario just for the sake of argument against that imagined point.
It is a rather bizarre thing to do, but it is not one that seems to be restricted to use by any one point of view. The next time it may be Microsoft or Apple in the firing line. It is a style of Internet posting that really irritates me, which might explain why I saw the original posting as an example of that while you saw it as a possible shill.
"At issue is how much evidence is required to invalidate a patent."
It takes a judge who can't be bribed by special interests which is hard to find and assign to this particular case.
You force me to pay for things I would never choose for myself to support. You force me to submit to authority I don't believe in. You achieve these things not through persuasion, but coercion -- by threatening me with physical force. But that's not enough. You want me to work for free, for a business I have observed to be nothing but selfish and corrupt.
Take a fucking hike.
The most respectable party in those briefs for me
Sorry, but no-one looks respectable in briefs.
I have a solution... Never trust anyone with a UID of 6 digits or more...
dammit...
"The amicus brief from the U.S. solicitor general says that the USPTO can be trusted to be the expert, over a jury".
When you believe that faceless bureaucrats and functionaries are better suited to make decisions than 12 fellow citizens, you are well on your way to despotism. When the US solicitor general, who is a major part of the judicial branch believes so, you are most of the way there.
I thought that this was a pretty cut and dried case; i4i created a plugin for Microsoft Word, attempted to sell it to MS, and MS took the code anyway and incorporated it into the Word application.
Is there more to this that I am not seeing?
It's You and I against the World... When do we attack?
This is a rare case where the EFF and MS are on the same side. If i4i prevails, it will be another in a long line of successful patent troll cases that will ultimately make it impossible for any independent developer to develop any software or hardware without immediately being hit by a dozen lawsuits.
SJW: Someone who has run out of real oppression, and has to fake it.
>> it was probably not so much a strong jury selection.
Are you kidding, it looks like this prosecutor wins his cases through jury selection - and almost did again with a weak case. The defender is probably use to being the one in a position of having weak cases, and automatically threw out smart people as well. The fact is, most cases are won on both sides through jury selection now-a-days. The last thing they want is somebody smart on the jury fucking up their manipulation. I would be interested in what percentage of slashdot users made it to a trial in the jury box. Soon as they hear engineer, physcisist, programmer, ANYTHING even related to logic,math, or reasoning ... your chances become slim. They really want people to judge with their gut on the sauce "allowed" in. I believe in listening to your intuition as well as logically reasoning something; but in a case like court, where it's just a shell game any-who ... always remember the lawyers are the only ones who really know where that "lady" is.
If I am ever called up, I'll say I work on garbage collectors for a living. I have to sort through heaps and store things in bins.
Atlas Shrugged : Thematic Story
You're right in theory. Not in practice. I don't really feel like talking about it in more detail, but I know of a non-profit (not sure if it was c3) that was effectively taken over by another one against its bylaws, with not even the AG office doing anything to stop it after an investigation (since it was a group comprised mostly of students nobody had money to fight it in court).
Is it still the responsibility of the patent office to determine obviousness and search for prior art? I am certain it used to be. But I recall some quote, within the past decade or so, where the head of the patent office stated that these things were not their responsibility. Am I remembering this correctly? Can anyone find such a quote?
"saying that the US Patent and Trademark Office should not be second-guessed by a jury"
The wad of corruption and incompetence that is the USPTO should ALWAYS be second-guessed by EVERYONE.
In Aussie lay speak what does this mean? Is it likely Microsoft might take a hit? Does i4i — whoever they are — do open source? Is this a FOSS story, or not?
http://www.theage.com.au/news/national/330000-buys-tick-of-approval/2007/02/05/1170524026024.html
The results:
http://mcdonalds.com.au/our-food/menu/#/heart-foundation-tick
Thanks! very good articles http://www.maxgames.me/
Sorry, but that fails.
This is not a case of a non-profit being subverted with money - it's just an example of an organization's program that operates just like the program was intended to. Yea, McDonald's paid to get their food certified and able to use the Heart Foundation endorsement - but they also made changes to meet the standards of the program.
That's really no different than the $200 a year I pay to the Project Management Institute so that I can put "PMP" on my correspondence and resume.
"Somebody has to do something. It's just incredibly pathetic it has to be us."
--- Jerry Garcia
It's an encouraging sign that heavyweights like the DOJ and BIO are supporting i4i. If their arguments succeed, then i4i and future patentees can have it both ways -- they can keep the clear-and-convincing standard, but with certain evidence being given greater "weight." Brilliant. As far as I'm concerned, i4i won this patent battle fairly at the lower courts, and Microsoft should have just let it go long before now.
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