Apple Tries To Point Out How Little Burst's Patents Matter

from the interesting-strategies dept

You may recall the story of Burst.com, a startup that had come up with some video streaming technology that they later claimed Microsoft copied. While many people still feel that Burst's patents are of questionable validity, there did appear to be evidence of questionable activity by Microsoft, so it was hardly surprising that Microsoft eventually settled the case for $60 million. That payoff then turned Burst onto the wonders of suing for patent infringement, and they started approaching plenty of other companies who were doing things with multimedia content. After threatening Apple, Apple went on the offensive and sued to have Burst's patents invalidated (or to, at least have a court say that Apple wasn't infringing). In response, Burst quickly sued Apple right back for patent infringement.

Apple is now asking the court to dismiss the lawsuit (via MacWorld), though the strategy they're using seems a bit odd. They're focused on Burst's claims that its patents are central to the success of the iPod -- an idea that Apple practically guffaws at in the lawyer's statements: "It's not some epiphanous, oh my God, when you put all these things together you have an iPod." What's odd is that courts usually don't care how important the patented technology is to the final product (which is one of the things the new patent reform law tries to change). Apple then goes on to suggest that there's plenty of prior art in the space and to suggest that the concept behind streaming video is an obvious progression, which makes more sense, given the Supreme Court's recent Teleflex decision, lowering the bar for determining what's obvious. The key point, though, is whether or not Apple would have been able to offer similar video products in the absence of Burst's patents. It seems fairly difficult to believe that no one would have figured out a way to do such a thing without Burst's patents.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    RandomThoughts, Sep 21st, 2007 @ 12:00pm

    No one buys a car becasue of its windshield wiper, but no one buys a car without one.

     

    reply to this | link to this | view in thread ]

  2.  
    identicon
    Anonymous Coward, Sep 21st, 2007 @ 12:15pm

    Huh?

    The writeup you have is terribly unclear on what you're trying to say. I can't make heads or tails out of the second paragraph *at all*. I am *assuming*, based on your past news posting history, that the Burst patent is stupid and needs to be tossed.

     

    reply to this | link to this | view in thread ]

  3.  
    identicon
    Luke Smith, Sep 21st, 2007 @ 12:32pm

    Maybe wrong place to post but...

    Judges are experts of law, not in technology or a government-assisted consultant for a 5 year product road map.

    A lot of multinational companies seem to be taking advantage of this consultant service. I bet it even costs less than hiring a team of Big5 consultants.

     

    reply to this | link to this | view in thread ]

  4.  
    identicon
    Luke Smith, Sep 21st, 2007 @ 12:52pm

    Back to the article..

    This baffles me. An ideal company spends 3% of net on R&D, and the other 97% on sales/marketing.

    If I was looking to evaluate their product, Burst's website even gives me reasons why not to buy: Pricing does not include any direct support But I can get a copy of their patents pretty easily.

     

    reply to this | link to this | view in thread ]

  5.  
    identicon
    Dylan, Sep 21st, 2007 @ 1:44pm

    This patent is also covered by Bob Cringely

    Bob Cringely takes a different view of the patent:

    http://www.pbs.org/cringely/pulpit/2007/pulpit_20070921_003001.html

     

    reply to this | link to this | view in thread ]

  6.  
    icon
    Mike (profile), Sep 21st, 2007 @ 5:54pm

    Re: This patent is also covered by Bob Cringely

    Bob Cringely takes a different view of the patent:

    Mark Stephens has been a huge supporter of Burst.com for a while. His article is misleading (and in certain points just wrong). He ignores (or doesn't know about?) the Teleflex ruling, which is what Apple is basing its claims on. He accuses Ars Technica of bad reporting, but their report is no less biased than his own.

    He goes on to suggest that Apple was losing the case based on what the patents say, but he ignores the fact that Apple is trying to say the patents are invalid based on the new Teleflex rules.

     

    reply to this | link to this | view in thread ]

  7.  
    identicon
    Dr. Huibolit, Sep 21st, 2007 @ 5:57pm

    Bunch of hooees

    I prescribe that you, people of the internet, stop reading Mike's writings immediately !!!
    Reading techdirt on a daily basis will make your stomach upset

     

    reply to this | link to this | view in thread ]

  8.  
    identicon
    Anonymous Coward, Sep 22nd, 2007 @ 7:59am

    One patent or another?

    It seems fairly difficult to believe that no one would have figured out a way to do such a thing without Burst's patents.

    Maybe the person who figured out how to do it without Burst's patents (nearly 20 years ago), would themselves have gotten a patent?

    Perhaps that no one has figured out how to do it without Burst's patents, shows the validity of those Burst patents?

     

    reply to this | link to this | view in thread ]

  9.  
    identicon
    Observer, Sep 22nd, 2007 @ 9:37am

    Apple v Burst

    I agree with several posters here. You just don't make a case for Apple. I suppose that's why after two mandatory judicial procedures have gone Burst's way their next stop is at trial. If Apple had a case it wouldn't proceed to trial and the case would have been thrown out. I look forward to your position after the Court's ruling on this week's summary judgment hearing.

     

    reply to this | link to this | view in thread ]

  10.  
    identicon
    Boost, Sep 24th, 2007 @ 9:54am

    Re:

    Of course not, they're required by law.

     

    reply to this | link to this | view in thread ]

  11.  
    identicon
    boost, Sep 24th, 2007 @ 9:56am

    Re: Back to the article..

    3% on R&D and 97% sales/marketing?!? I think you're missing a few key business expenses.

     

    reply to this | link to this | view in thread ]

  12.  
    identicon
    Boost, Sep 24th, 2007 @ 9:59am

    Re: Apple v Burst

    I think Apple's legal department probably has enough legal intelligence to know if they've got a chance in court or not. I think you've got it backwards, if it has a chance it goes to court, not the other way around.

     

    reply to this | link to this | view in thread ]

  13.  
    identicon
    David, Sep 24th, 2007 @ 2:29pm

    "What's odd is that courts usually don't care how important the patented technology is to the final product (which is one of the things the new patent reform law tries to change)."

    What basis do you have for this observation? 20 years of patent litigation or something you read on an Apple blog?

    The single most fundamental factor in determining a proper royalty is the contribution of the patented technology to the value of the product that includes it. Under current law, that is also the most fundamental factor in determining damages in a patent infringement lawsuit.

    There's a simple answer for any infringer who complains about having to pay too much to use a patent - If the patent covers something insignificant, take that insignificant something out of your product and go forward with no more royalties to pay. The answer always seems to be, "We can't take it out." To which I respond, then it must be significant.

    The plain fact is that many, many industry segments regularly and without lawsuits license the patents necessary to build their products. High tech is the lone major exception to this practice, a renegade that got big without getting very sophisticated in its business practices.

    The standard excuse from tech companies is, "Our business moves too fast to worry about patents." My response is that biotech companies are very careful with patent licensing and there has been a lot more innovation coming out of biotech in the last 10 years than there has been coming out of Redmond.

     

    reply to this | link to this | view in thread ]


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