Microsoft Finally Reveals Some Of The Patents It Claims Linux Infringes... Sorta

from the here-we-go dept

For years, Microsoft has waved around the FUD stick concerning the 200+ patents it claimed to hold that Linux implementations supposedly infringed upon. However, when confronted, the company never seemed willing to name a single such patent. However, it looks like the company is starting to swing that stick with a bit more force. Horacio Gutierrez, Microsoft's "patent guy," fresh off a promotion, is suing navigation device maker TomTom over a variety of patents, including a few that relate to TomTom's implementation of Linux. Gutierrez has a somewhat troubling view on patents, where he believes that all tech companies should effectively be paying pretty much everyone else patent licensing fees before they can build any products. Rather than seeing that as a problem -- he thinks it represents a good thing. It's difficult to see what the benefit is in all that wasted money changing hands... other than it's probably what pays his salary. Not surprisingly, Microsoft is using the infamous ITC loophole to get two shots at forcing TomTom to pay up -- meaning that it's both sued the company in court, and gone to the ITC to have it try to block the import of TomTom products.

As for the patents themselves, looking them over, it's almost scary how broad they are. Some of them apply to basic in-car navigation features, while others focus on the file system TomTom is using (which is an implementation of Linux). If you'd like to look them over, here they are: It's those last three that apply to TomTom's implementation of Linux. While Gutierrez insists this is not Microsoft beginning its patent assault on Linux, anyone wondering about those mythical 200+ patents might want to start checking on those three patents first. Unfortunately, chances are that TomTom will just settle. No matter how strong a case it might have, it's going to be cheaper to settle, and that's exactly what Microsoft is counting on.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    ToySouljah, Feb 25th, 2009 @ 8:22pm

    Back to the Top

    After seeing President Obama's address to Congress and hearing him mention how he wants America to be the world leader in Technology, and pushing for the future of this country (the kids) to be able to compete on a world market instead of outsourcing for talent. I thought to myself that Patent Reform is going to be a key issue since without it, things such as this and all the other lawsuits floating around will kill innovation since it would make them too expensive to really get off the ground.

    I'm all for people getting paid for their hard work, but when it forces other companies to not produce a product due to patent restraints then no one is benefiting. I am not too sure as to how the use of a patent is paid for, but it needs to be limited so that small up and coming companies are not bullied by established corporations with lawsuits and forced in to debt just so they can produce a product and hope it's a hit to repay the use of the patent as well as all the other expenses associated with creating a new product.

     

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

  2.  
    identicon
    Anonymous Coward, Feb 25th, 2009 @ 8:33pm

    Someone got paid

    From wikipedia:

    On 2004-09-30 the USPTO rejected all claims of U.S. Patent 5,579,517

    On 2005-10-05 the Patent Office announced that, following the re-examination process, it had again rejected all claims of patent 5,579,517, and it additionally found U.S. Patent 5,758,352 invalid on the grounds that the patent had incorrect assignees.

    Finally, on 2006-01-10 the Patent Office ruled that features of Microsoft's implementation of the FAT system were "novel and non-obvious", reversing both earlier non-final decisions.

     

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

  3.  
    identicon
    Mark Blafkin, Feb 25th, 2009 @ 8:38pm

    The problem with your argument...

    I'm just glad that we had one glorious moment of agreement on patents recently, because we're back to disagreeing. I know that you're just not a fan of patents, but I don't think your FUDing of the Micosoft patents really holds up to scrutiny.

    In this particular case, large companies like Pioneer, Alpine, and Kenwood have all taken licenses for them. If they thought the patents were bogus, I'm sure their legal departments wouldn't have signed those deals.

    As for the Linux patents you call "mythical," companies like BMW and Siemens, both with massive patent portfolios and powerful legal teams voluntarily took licenses for Microsoft's Linux related patents. If they were all specious, the Germans would have laughed Ballmer & Co. out of the country.

    Additionally, as I've written before Microsoft was the very last one of join the supposed "Microsoft Patent FUD Party." Stallman, Moglen and Company started tossing that FUD all around the world years ago in their effort to create excuses for killing software and software-related patents.

     

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

  4.  
    identicon
    Anonymous Coward, Feb 25th, 2009 @ 8:40pm

    Pinky & the Brain never do succeed

    Microsoft is a vile and despicable POS. They can swear and throw chairs until the monkeyman falls down, but they will not prevail over the free will of the people.

     

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

  5.  
    identicon
    Anonymous Coward, Feb 25th, 2009 @ 8:48pm

    Re: from the here-we-go dept

    izuka01 - go pound sand

     

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

  6.  
    identicon
    Anonymous Coward, Feb 25th, 2009 @ 8:55pm

    Re: The problem with your argument...

    Follow the lemmings.
    Gosh - everyone else is doing it, guess I should too.
    Such compelling arguments are very difficult to argue.

    Do you have any facts to substatiate your claims?
    Or am I to assume you are just another FUD sponge.

     

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

  7.  
    identicon
    Anonymous Coward, Feb 25th, 2009 @ 9:05pm

    Re: The problem with your argument...

     

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

  8.  
    identicon
    Anonymous Coward, Feb 25th, 2009 @ 9:11pm

    Re: The problem with your argument...

    And who is the King of FUD ?
    I'm glad you asked.

    from wikipedia:
    Microsoft soon picked up the art of FUD from IBM, and throughout the 80's [sic] used FUD as a primary marketing tool, much as IBM had in the previous decade. They ended up out FUD-ding IBM themselves during the OS2 vs Win3.1 years.

    FUD sponge - that's funny

     

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

  9.  
    identicon
    charles, Feb 25th, 2009 @ 9:17pm

    wow... just when I start to like microsoft again with windows 7 they do something stupid like this... I wonder if that guy is under 5'5? (Napoleon syndrome) lol

     

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

  10.  
    identicon
    Anonymous Coward, Feb 25th, 2009 @ 9:33pm

    Yes, We Have No Bananas.

    I think Horacio Gutierrez should sing "Yes, We Haz No Bana-GPS" at a shareholders’ meeting, a’la the Swedish Chef:

    http://www.youtube.com/watch?v=PrmBWtOWYsA

     

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

  11.  
    icon
    Mike (profile), Feb 25th, 2009 @ 10:00pm

    Re: The problem with your argument...

    In this particular case, large companies like Pioneer, Alpine, and Kenwood have all taken licenses for them. If they thought the patents were bogus, I'm sure their legal departments wouldn't have signed those deals.

    Heh, as I'm sure you well know, that's simply not true at all. Many, many, many companies agree to take out a license because it's a hell of a lot cheaper and easier to do so than to fight it in court. That's a really weak argument.

    As for the Linux patents you call "mythical," companies like BMW and Siemens, both with massive patent portfolios and powerful legal teams voluntarily took licenses for Microsoft's Linux related patents. If they were all specious, the Germans would have laughed Ballmer & Co. out of the country.

    Again... same argument applies. It's a lot cheaper than fighting. We all saw what happened when RIM tried to fight a bogus patent lawsuit: their shareholders punished them silly until they agreed to just license the bogus patents and end the uncertainty.

    Additionally, as I've written before Microsoft was the very last one of join the supposed "Microsoft Patent FUD Party." Stallman, Moglen and Company started tossing that FUD all around the world years ago in their effort to create excuses for killing software and software-related patents.

    I'm not quite sure what that proves. I don't agree with Stallman, Moglen and that group on very much at all. So, because they did something stupid we should give Microsoft a pass?

    And, Mark, isn't it worth pointing out that Microsoft is one of the major backers of your lobbying organization?

     

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

  12.  
    identicon
    Michael, Feb 25th, 2009 @ 10:47pm

    Re: Back to the Top

    I think that patents should either be eliminated or vastly restricted and more expensive.

    The number of patents granted in a given year should be in the dozens at most, and should be open to full publishing and public review for prior art and obviousness to engineers in the field. Announce the title and applicability of the patent as qualified by a single independent engineer who can understand it but is then barred from the rest of the process a few months before the patent is published for review.

    Patents should also be much more expensive to purchase. A fee of $50000 for any corporation and $1000, adjusting with inflation, for any person applying should limit entries to only the best and brightest.

    The rest should all be under the protection of Copyright and private contracts. Copyright should also be limited to a sane value somewhere around 10-25 years; any longer than a quarter century and I do not anticipate further relative incentive or value to the public.

     

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

  13.  
    icon
    Jasen (profile), Feb 25th, 2009 @ 11:14pm

    Focus

    One has to wonder if Microsoft focused more on Windows Vista and less on silly patents, then perhaps Vista could have turned out better? Focus effort on innovation. If someone copies your innovation, out innovate them.

    I hope the new administration reforms the patent system. It is desperately over due!

     

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

  14.  
    identicon
    Anonymous Coward, Feb 26th, 2009 @ 12:12am

    Re: Pinky & the Brain never do succeed

    I agree.......

     

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

  15.  
    identicon
    rcw, Feb 26th, 2009 @ 7:14am

    6704032

    Take a look at the base claim in US6704032:

    1. A method for interfacing multiple different user input hardware arrangements with virtual object-based graphical user interface logic, the method comprising:

       generating a displayable form within a graphical user interface, the displayable form including at least one controllable virtual user-input object;
       establishing a set of key events, wherein at least a portion of the key events can be operatively associated with a plurality of different types of non-virtual user input mechanisms;
       receiving user input via at least one non-virtual user input mechanism selected from the plurality of different types of non-virtual user input mechanisms;
       establishing a behavior model for the displayable form; and
       determining when an operational change associated with the controllable virtual user-input object is required based at least on the behavior model and the received user input and when appropriate causing the operational chance to occur such that the virtual user-input controllable object is graphically altered in appearance and associated controlled logic functionality is modified accordingly.

    Multiplayer first-person-shooters, anyone? I haven't read all the rest of the claims yet, but they all seem like small tweaks to that. Quake was around before 2000, and seems to implement many of them.

     

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

  16.  
    identicon
    JEDIDIAH, Feb 26th, 2009 @ 7:39am

    Let's patent other people's inventions.

    Most of these things appear to be nothing more than
    patenting OTHER people's inventions. A lot of this
    stuff appears to apply to just about any mp3 player
    or portable computing device. There's plenty of prior
    art for either of those.

    Infact, in the 90's there was an interesting little
    Linux based car mp3 player that was nothing more than
    a PC shrunk down the car stereo form factor. I think
    it was one of the first (if not the first) mp3 players
    to use laptop hard drives.

    These patents really highlight the poor quality of
    patent examination that's going on at the USPTO
    these day. The bar really should be a bit higher.

    Of course TomTom is being singled out because they
    help perpetuate a competing technology (namely
    Linux).

     

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

  17.  
    identicon
    DevStar, Feb 26th, 2009 @ 9:17am

    Understand patents...

    I think many don't understand how patents work. To infringe on a patent you must infringe on _ALL_ claims. Not infringing on any single claim is enough to state that you don't infringe on the patent.

    With most patents I've been a part of there is a "key claim" (or two). This is the part where the real "patent" is, but it is often surrounded by 20 other claims that are pretty mundane.

    This is why patents often look like they are copies of existing work. You must read every single claim and understand them all. I must admit that even for patents I've been an author of, after the patent attorney has done their magic on it I have trouble following what I invented!

    But I think what you'll often see is that if you read through them carefully you'll run across something that makes you think, "Oh, OK. That's pretty clever." It maybe be claim 5 or claim 22, but it's often in there. Not always, but often.

     

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

  18.  
    identicon
    Mark, Feb 26th, 2009 @ 9:19am

    This all just reinforces in my mind that Microsoft will not be completely happy with itself until they can charge anyone for anything software-related. The perfect example of how to rake in millions without actually making anything.

     

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

  19.  
    identicon
    Mark Blafkin, Feb 26th, 2009 @ 9:26am

    Re: Re: The problem with your argument...

    Mike,

    Unlike many commentators on this blog, I post using my real name and link back to our website that clearly lists Microsoft as one of our members. I'm not trying to hide anything here. That said, if you start announcing every time you write about a sponsor/advertiser/customer of Floor64/TechDirt, I will be sure to follow :-)

    Now, back to substance. There are times when companies simply pay licensing fees because it's "cheaper." However, the companies I was listing off have SIGNIFICANT patent portfolios, so instead this is about negotiating cross licensing deals. It's a very different calculus.

    In those scenarios, typically, the two companies sit down to figure out:

    1. What patents each company has that potentially read on each other's products.

    2. What patents the other company has that might be useful to future development strategies.

    3. What those patents are worth.

    Every part is negotiated heavily, because neither company wants to pay for patents they don't need or pay too much for the ones they do. Otherwise, they could be the ones writing a massive check at the end of the year. In this scenario, the question of litigation costs is rarely if ever the guiding principle.

    So, while no patent lawyer would definitively state "this patent reads on this technology," the fact that mature companies with significant patent portfolios (including patents that probably read on Microsoft technologies) decided to license these patents suggest that they at least pass the "laugh test."

    Finally, my point about Stallman et al is not meant to PROVE anything. It was meant to help correct some language in your post. It's a bit of personal pet peeve, because the Freetards spent years promoting fear about Microsoft's patents and the danger they posed to Linux, I'm sorry... "GNU/Linux." Heck, Moglen used to call the FAT patents a "Sword of Damocles" hanging over open source.

    But, as soon as Microsoft said "Yes. There are 235 patents," they started complaining that Microsoft was simply throwing FUD. Not truly important, but one of those things that just bugs me after following this issue for years. I'm not asking you to give Microsoft a "pass," just not perpetuate the myth that Microsoft is that one who started the FUD about its patents re: Linux.

     

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

  20.  
    icon
    Mike (profile), Feb 26th, 2009 @ 11:02am

    Re: Re: Re: The problem with your argument...

    Unlike many commentators on this blog, I post using my real name and link back to our website that clearly lists Microsoft as one of our members. I'm not trying to hide anything here. That said, if you start announcing every time you write about a sponsor/advertiser/customer of Floor64/TechDirt, I will be sure to follow :-)

    Unlike your organization, however, we are not an advocacy/lobbying organization. You are paid to push a certain position. We are not. So I believe the fact that Microsoft is one of your main backers, and your job is to help push a specific message, is pretty relevant.

    So, while no patent lawyer would definitively state "this patent reads on this technology," the fact that mature companies with significant patent portfolios (including patents that probably read on Microsoft technologies) decided to license these patents suggest that they at least pass the "laugh test."


    I guess I deal in different circles of IP lawyers than you do. Most I know who work at such companies admit they "license" bogus patents all the time, just because it's faster and easier, and avoids a devolution into patent nuclear war, with both sides suing each other. It's just easier and more efficient to write a check and chalk it up as cost of doing business.

    But, as soon as Microsoft said "Yes. There are 235 patents," they started complaining that Microsoft was simply throwing FUD. Not truly important, but one of those things that just bugs me after following this issue for years. I'm not asking you to give Microsoft a "pass," just not perpetuate the myth that Microsoft is that one who started the FUD about its patents re: Linux.

    It wasn't the fact that Microsoft said they had the patents, it was the fact that they refused to identify them. That was (and still is) the FUD part.

     

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

  21.  
    identicon
    Anonymous Coward, Feb 26th, 2009 @ 11:11am

    Re: Re: Re: The problem with your argument...

    "because the Freetards spent years.."

    I'm sorry, but you lost any ability you had to persuade me to your side the instant you resorted to insults. By using insults you show an extreme amount of bias, an inability to come up with a more convincing post, and a lack of maturity. It is just as bad, if not worse, as those who use "M$" instead of "MS". As long as you use insults and can not talk about your competition in a professional manner you will never be as persuasive as you could be.

     

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

  22.  
    identicon
    nasch, Feb 26th, 2009 @ 12:15pm

    Re: Re: Back to the Top

    A fee of $50000 for any corporation and $1000, adjusting with inflation, for any person applying should limit entries to only the best and brightest.

    No, it would limit them to the richest.

     

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

  23.  
    identicon
    cschulte22, Feb 26th, 2009 @ 12:51pm

    Microsoft may settle

    I ran across this interesting article on The Business Insider that says Microsoft (not TomTom) should just settle this case for pennies:

    http://www.businessinsider.com/why-microsoft-should-settle-the-tomtom-linux-patent-lawsu it-at-any-price-2009-2

    The article brings up a good point that with the Windows 7 release due out soon, this really isn't the time for Microsoft to start the war against every Linux "open-source zealot and die-hard Microsoft-hater." Microsoft can't afford to invite bad publicity if it hopes to repair its image after the whole Vista flop.

    Of course, it makes me wonder why they'd file the lawsuit in first place if they're just going to settle. Maybe Gutierrez forgot to clear this through the PR dept. first...

     

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

  24.  
    identicon
    Anonymous Coward, Feb 26th, 2009 @ 1:04pm

    Re: Microsoft may settle

    that is a really good point, I know people who are just starting to recover from their microsoft ill-will beliefs and are willing to try windows 7 after they find out for sure that all major bugs and such are out of it, this kind of news will just send them rallying against microsoft again.

     

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

  25.  
    identicon
    Anonymous Coward, Feb 26th, 2009 @ 1:43pm

    Re: Microsoft may settle

    Great find, cschulte22.

    Another point is picking on Luxemburg-based TomTom probably won't set well with EU regulators.

    But with this infringement lawsuit, Microsoft should also just bite the bullet, and probably downsize/eliminate the whole vehicle division. On a macro-economic level, people aren't buying cars. The main ports (Long Beach in particular) are busting at the seams with surplus inventory that can't be moved to dealerships. Those that are buying cars, are skimping on extra features, and purchasing entry- evel. The Auto industry is not doing very hot right now, and getting computing into vehicles was an uphill battle to begin with. The vehicle division probably won't be profitable for a decade. Just a heads up.

     

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

  26.  
    identicon
    Anonymous Coward, Feb 26th, 2009 @ 3:21pm

    Re: Re: Re: The problem with your argument...

    "So, while no patent lawyer would definitively state "this patent reads on this technology," the fact that mature companies with significant patent portfolios (including patents that probably read on Microsoft technologies) decided to license these patents suggest that they at least pass the "laugh test." "

    I don't know the correct term for the fallacy of "I'm right because I said so, twice!"

     

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

  27.  
    identicon
    Anonymous Coward, Feb 26th, 2009 @ 3:42pm

    Re: Re: Re: Re: The problem with your argument...

    I don't know, "MS" can mean a lot of things: http://acronyms.thefreedictionary.com/MS
    Whereas if you use "M$" people more likely know what you mean. "M$" isn't a pejorative term (unless you consider the connotation of being a commercial entity something bad) but rather a descriptive one. In fact, I think being associated with "money" would be a compliment for them.

     

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

  28.  
    identicon
    Mark Blafkin, Feb 26th, 2009 @ 4:23pm

    Re: Re: Re: Re: The problem with your argument...

    @Mike

    With all due respect Mike, we don't know whether you're paid to push the opinions you write or not. It's not like you're publishing facts and research devoid of slant or advocacy and can say you're just being a "journalist." So, based on that logic, we just have to take your word for it that your opinions are yours and yours alone.

    Yes, ACT advocates on behalf of free market principles that our 3000+ members companies, including Microsoft, support. However, isn't the content of my arguments more important than the members who support them?

    So one more time, I will try to discuss what is important. I'm sure there are many IP lawyers that license bogus patents all the time. But, theyre probably talking about situations where their company has few if any patents and are being approached aggressively by someone looking to extract just enough $$ to make it cheaper than litigation. However, I guarantee you that those exact same lawyers would admit that discussions between two giant companies with massive patent war chests are a COMPLETELY different scenario. There isnt the same incentive to just write a check for anything cheaper than litigation.

     

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

  29.  
    identicon
    rob enderle, Feb 26th, 2009 @ 5:52pm

    Told you so

    Im happy this is happening just so I can tell a select few "I told you so".
    For quite some time, Ive heard comments about how Microsoft has changed and that those threats mean nothing. They really, really like us now and want to hold our hands and sing Kumbaya.
    We'd hear about how the Stooge du jour, whether it be Bill Milf or Ramji, is telling us what we should be listening to and not the head of the company. I know that's how it works in most businesses; you dont listen to what the CEO says but claim that some low level manager is really the voice of the company.
    This is the voice of the company:
    http://www.youtube.com/watch?v=5B0GTYfPoMo

    THIS is what the company is all about.


    Of course, you could just go to Novell who supports Microsoft claims about Linux stealing their IP.

     

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

  30.  
    icon
    Mike (profile), Feb 26th, 2009 @ 6:08pm

    Re: Re: Re: Re: Re: The problem with your argument...

    With all due respect Mike, we don't know whether you're paid to push the opinions you write or not.

    With all due respect, Mark, if you are going to come here and call me a shill, show up with evidence next time. I take my independence VERY seriously, and it should be obvious to anyone who actually reads what we write. Our reputation is way too important to sully it with any public policy or advocacy work on behalf of anyone. That's simply not what we do.

    To even suggest otherwise shows the level you are willing to stoop to. I had thought better of ACT. Apparently I should have known better. I had no idea that you guys slur those who disagree with you. What a shame.

     

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

  31.  
    identicon
    Robert J Backlund, Feb 26th, 2009 @ 6:40pm

    patent defence

    I do not know about you guys but I for one would be willing to donate to a Linux legal defense fund if one existed. I think we all should band together and if each of us could only give 1 dollar and if all the Linux users contributed it would be in the millions that could help a company like Tom Tom fight the 800lb PIG on the block called MicroSUCK!!!!!! when the lawsuits that they start directly involve Linux. We here in the US should all boycott all Microsoft products and start an organized lobbing effort to get the Patent laws changed in the US. Along with this since we as Linux users know how useful and powerful it is and how much money it would save, as tax payers we should all demand of our elected officials both federal and local that Linux and FOSS software be immediately adopted in Government as well as in our schools. To do other wise is a wast of tax payer funds.

     

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

  32.  
    identicon
    rcw, Feb 26th, 2009 @ 7:15pm

    Re: Understand patents...

    DevStar, Wikipedia's "Claim (patent)" article cites a specific legal case which contradicts your statement that an infringing device must infringe on all of a patent's claims:

    As construed in the courts, the doctrine of claim differentiation dictates that it would be "improper for the courts to read into an independent claim a limitation explicitly set forth in a dependent claim."Environmental Designs Lid. v. Union Oil Co. of California, 713 F.2d , 699 (1984).. This means that if an independent claim recites a chair with a plurality of legs, and a dependent claim depending from the independent recites a chair with 4 legs, the independent claim is not limited to what is recited in the dependent claim. The dependent claim protects chairs with 4 legs, and the independent claim protects chairs with 4 legs as well as chairs having 2, 3, 5 or more legs.

    If what you are saying was true, then patents wouldn't be written the way they are, like rings on a tree or layers of an onion. There wouldn't be any point.

     

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

  33.  
    identicon
    Simba7, Feb 26th, 2009 @ 8:15pm

    Microsoft is desperate

    Microsoft is just desperate because Vista was a flop.

    Now, they have to pull revenue from somewhere else to offset the billions of dollars lost due to pushing out Vista too quickly. Maybe if they open-tested Vista it would actually work properly.

    ..but who knows. We all know Microsoft hates Open Source. It's no surprise, really.

     

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

  34.  
    identicon
    Anonymous Coward, Feb 26th, 2009 @ 8:25pm

    Re: Re: The problem with your argument...

    We all saw what happened when RIM tried to fight a bogus patent lawsuit

    Yes, we did.

    A federal district court determined that the patent lawsuit was not bogus.

    A federal appellate court determined that the federal district court was correct.

    The US Supreme Court refused to hear an appeal that the federal district court and the federal appellate court were both wrong.

    For the life of me I will never understand why all these courts and judges failed to see just how bogus the lawsuit really was. The only thing I can figure is that they took a look at the evidence produced by the parties.

     

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

  35.  
    identicon
    Mark Blafkin, Feb 27th, 2009 @ 4:46am

    Re: Re: Re: Re: Re: Re: The problem with your argument...

    Mike,

    That was not what I meant, and I apologize for not being more clear. You started off by suggesting the only thing important about what I said was the fact that Microsoft was one of my members. You questioned my integrity and my honesty from the first post forward, rather than focusing on the content of my ideas. My point was meant to be that we, including me, all TRUST that you are independent in your opinions and focus instead on quality of your ideas. Shouldn't you be willing to do the same? I should have stated that more clearly, rather than simply inferring it.

    Again, I'm sorry for not being more clear and certainly didn't mean to slur your in any way. Between the flu and lack of sleep, I'm sure this is all a big misunderstanding on both sides.

     

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

  36.  
    icon
    Mike (profile), Feb 27th, 2009 @ 9:52am

    Re: Re: Re: The problem with your argument...

    We all saw what happened when RIM tried to fight a bogus patent lawsuit

    Yes, we did.

    A federal district court determined that the patent lawsuit was not bogus.

    A federal appellate court determined that the federal district court was correct.


    You seem to have left out the part where the USPTO rejected all of the claims in NTP's patents, and even made a special exception where it told the appellate court it was doing so, making it quite clear that the judge should wait for the USPTO to issue its final ruling... and the judge ignored it.

    Ooops.

    For the life of me I will never understand why all these courts and judges failed to see just how bogus the lawsuit really was. The only thing I can figure is that they took a look at the evidence produced by the parties.

    Heh. The courts have a pretty long history of screwing up patent rulings. Ignoring the USPTO was particularly egregious.

    As for the Supreme Court, that's hardly a case of them "looking at the evidence closely." They obviously only take a very few cases each year.

     

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

  37.  
    icon
    Mike (profile), Feb 27th, 2009 @ 9:54am

    Re: Re: Re: Re: Re: Re: Re: The problem with your argument...

    That was not what I meant, and I apologize for not being more clear. You started off by suggesting the only thing important about what I said was the fact that Microsoft was one of my members.

    Mark, I'm sorry too. But, to be clear, that was not the "only thing" that I thought was important, and I think that's pretty clear, because I addressed each of your points, and only mentioned at the very end the fact that you work for an advocacy organization funded, in part, by Microsoft. I believed that was relevant information, but hardly the only point.

     

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

  38.  
    identicon
    DevStar, Feb 27th, 2009 @ 1:19pm

    Re: Re: Understand patents...

    rcw, that statement is completely orthogonal to what I was talking about. What that statement is about is one claim limiting another claim (and it's saying that it doesn't). It doesn't say anything about infringement on claims (except to the extent that you infringe on a independent claim in a way that doesn't infringe on a dependent claim).

     

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

  39.  
    identicon
    Anonymous Coward, Feb 27th, 2009 @ 1:55pm

    Re: Re: Re: Re: The problem with your argument...

    You seem to have left out the part where the USPTO rejected all of the claims in NTP's patents, and even made a special exception where it told the appellate court it was doing so, making it quite clear that the judge should wait for the USPTO to issue its final ruling... and the judge ignored it.

    Actually, I left out the part where the evidence presented at trial corresponded to what was presented to the USPTO when a slew of reexaminations were requested by RIM for NTP's five (5) patents. For one who reposes no faith in the ability of the USPTO to do its job, it is a bit surprising that you choose to do so in this case. Moreover, the rejection of a claim during the course of a reexamination occurs in virtually every such proceeding. Of course, many of these rejections are easily traversed and the claim upheld. In those cases where claims may be problematic, they are invariably amended to narrow their scope the amount necessary to make the problem go away.

    It is also important to note that the reexaminations were filed specifically to derail and significantly delay the lawsuit. It was nothing more than a litigation tactic, a tactic that ultimately backfired on RIM, as well it should have. Sadly, RIM ultimately payed the price for the legal shenanigans its lawyers employed.

    Heh. The courts have a pretty long history of screwing up patent rulings. Ignoring the USPTO was particularly egregious.

    I did not realize that our judicial branch of government commits an egregious act when it does not take "orders" from an agency within the executive branch. Perhaps you should explain this to the district and appellate courts since they seem to believe that the separation of powers is a pretty important feature of our legal system.

    As for the Supreme Court, that's hardly a case of them "looking at the evidence closely." They obviously only take a very few cases each year.

    If you recall recent Supreme Court activity, patent law and issues of general law arising in patent cases have been taken up in significant numbers. I know this is a long shot, but I simply cannot dismiss the possibility it chose not to hear an appeal because it did not see any meaningful error in the "bogus" decisions by the lower courts.

    In all honesty, my above "snarks" are nothing more than a retort to the original use of the word "bogus". Who knows? Maybe the patents were bogus. The bottom line, however, is that a jury and several judges, at least three of whom deal with this area of law every day, were presented in exquisite detail both sides of the story by the opposing attorneys. There is no doubt that all of them were certainly better informed of the facts than either of us and did not buy into the characterization of the patents being "bogus".

     

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

  40.  
    identicon
    Anonymous Coward, Feb 27th, 2009 @ 3:03pm

    Re: Re: Re: Understand patents...

    To clear up any misconception, the infringement of any claim in a patent is deemed infringement of the patent. For example, assuming a patent having 50 allowed claims, the infringement of Claim 8 is an infringement of the patent, even if the other 49 claims (1-7 and 9-50) are not infringed.

     

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

  41.  
    icon
    Mike (profile), Feb 27th, 2009 @ 7:08pm

    Re: Re: Re: Re: Re: The problem with your argument...

    In all honesty, my above "snarks" are nothing more than a retort to the original use of the word "bogus". Who knows? Maybe the patents were bogus. The bottom line, however, is that a jury and several judges, at least three of whom deal with this area of law every day, were presented in exquisite detail both sides of the story by the opposing attorneys. There is no doubt that all of them were certainly better informed of the facts than either of us and did not buy into the characterization of the patents being "bogus".

    I've yet to see anyone who has any experience in the wireless space look at any of NTP's patents and not laugh outloud that they were granted.

    They are bogus. The patents were incredibly broad on an obvious idea.

     

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

  42.  
    identicon
    Microsux, Feb 28th, 2009 @ 7:25am

    Dude, that's bogus

    Microsoft is the biggest intellectual property cartel in the world. Cartelsoft.

     

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

  43.  
    identicon
    Anonymous Coward, Feb 28th, 2009 @ 8:49am

    I've yet to see anyone who has any experience in the wireless space look at any of NTP's patents and not laugh outloud that they were granted.

    They are bogus. The patents were incredibly broad on an obvious idea.


    I have seen the attitudes exemplified by the above so many times that long ago I ceased even trying to count their frequency. In part this was because I noted that in the vast majority of cases these attitudes were being expressed after the fact at a time when the solution had been disclosed to the world. However, under our laws the critical question is "would the 'claimed' invention have been obvious at the time the invention was made to one who at that time was a person having an ordinary level of skill in the art to which the invention relates?"

    In the technical environment I was working as an attorney virtually all of the subject matter experts were PhDs who had been at the game for 20, 30, and even 40+ years. They obviously were persons of extraordinary skill in the art, persons whose knowledge of the relevant technology far exceeded the above legal standard of one having "ordinary" skill. So, there I was talking with technology experts widely recognized by their peers as outstanding engineers and research scientists whose work was recognized as second to none.

    In each of these instances I would sit down with one or more of them who were absolutely and unshakably sure that an invention was obvious. Of course, given their high level of skill it they became convinced to reconsider their initial impression of the invention and arrive at the conclusion that it was not in fact obvious, then a fortiori it follows that the invention would most certainly have not been obvious to one in their technological field having but ordinary skill.

    What I found was almost always the case is that after reviewing a patent, reviewing all available prior art (which in law is significantly broader than merely printed publications), and then looking at the claims and dissecting what the claims really covered, it was indeed quite rare that these experts did not reconsider their original impressions and change their minds. Mind you, this was not always the case since mistakes can be made in the process of issuing a patent, but those situations seemed to be in the minority of instances.

    Why is this important? Too often proclamations of obviousness are made with a grasping the understanding that will the specification of the patent is descriptive in nature, it is the claims that are the "meat" of a patent. Once this was explained to the experts, and once they began to really take a look at what the claims actually covered, previous views began to change rather quickly as they realized what in fact the patentee's had actually done. In many, many instances their original jaundiced eyes were replaced by insight that much more was actually involved and led a very large number to make statements such as "I did not realize what this was really all about, and now that I know it is clear that the inventor really did something quite unique and not at all readily apparent."

    It is important to note that education was a necessary presursor for them to take note of what was actually done, an education that far too often, and unfortunately, not presented in an understandable manner.

    The point to be made here is that while I have no doubt you have spoken to many telecommunication engineers, I do have to wonder if anyone has ever taken the time and effort to provide the necessary precusor education. My experience teaches me that this far too often not the case, and it is in significant part due to this that so many proclamations are made that an invention is plainly obvious. Sometimes claimed inventions are plainly obvious and the patent is susceptible to persuasive arguments that the claims are of dubious validity. Many other times, however, precisely the opposite conclusions are reached after the much needed education has been presented and assimilated.

    Unless the time has been taken to present the necessary education, it is difficult to place blind faith reliance on matters of first impression by persons who tend to focus on broad concepts, and not the actual substance of a patent.

     

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

  44.  
    icon
    Mike (profile), Feb 28th, 2009 @ 10:01am

    Re:

    Unless the time has been taken to present the necessary education, it is difficult to place blind faith reliance on matters of first impression by persons who tend to focus on broad concepts, and not the actual substance of a patent.

    And, with that, you have just proven that the precious "disclosure" aspect of patents that you continually claim is so important, is totally bogus.

    If you need special lawyers to "pre-educate" you before understanding a patent, it's not disclosing a damn thing.

    Thanks for finally proving that point.

     

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

  45.  
    identicon
    Anonymous Coward, Feb 28th, 2009 @ 11:31am

    Re: Re:

    And, with that, you have just proven that the precious "disclosure" aspect of patents that you continually claim is so important, is totally bogus.

    I believe you overlooked the significance of the following portion of my comment:

    What I found was almost always the case is that after reviewing a patent, reviewing all available prior art (which in law is significantly broader than merely printed publications), and then looking at the claims and dissecting what the claims really covered, it was indeed quite rare that these experts did not reconsider their original impressions and change their minds. Mind you, this was not always the case since mistakes can be made in the process of issuing a patent, but those situations seemed to be in the minority of instances.

    Please note that I mentioned three things. First, the patent itself was reviewed in its entirety. This is important because a patentee is required to provide an enabling disclosure of what the patentee has invented. Second, whether or not an invention is patentable as described and claimed does require careful consideration of what comprised the prior art at the time the invention was made Third, claims are reviewed in light of the disclosure (aka, "specification") and the prior art to determine if the requirements of patentability are met, namely, the invention is new, useful, and nonobvious.

    I fail to see how this can in any reasonable way be construed to buttress your views. Quite the contrary. I believe that once how a patent is structured is understood, and once the importance of claim construction is understood, attitudes and opinions often changed 180 degrees.

    Bear in mind that this comment is conversational in nature. It is not a detailed explication concerning patent law. It is merely to note that those who do not take the time to actually read a patent, consider the prior art, and read the claims will in many instances overlook what it is that has actually been invented and claimed.

    Proclamations of "it's bogus", "it's obvious", "I can't believe a patent was issued", etc. can easily fall by the wayside under these circumstances.

    Sorry, but I believe it is not legitimate to describe an invention as being "bogus" without having gone through the above analysis. Otherwise, one is proclaiming an opinion without a sound factual predicate. True, there are some "trifles" that even a "moron in a hurry" can appreciate, but in the more sophisticated technological arts this is very seldom the case.

     

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

  46.  
    identicon
    pap, Mar 1st, 2009 @ 8:09am

    Patent on hammering

    I am going to get a patent on the action of using the hammer ie: hammering.
    That means you can make a hammer, you can sell a hammer, you buy the hammer, but you will need to pay me before you can actually use it for hammering because I will own the patent for it.
    Sounds STUPID.
    This is no different to the stuff MS is pulling.

     

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

  47.  
    identicon
    Ivan Malone, Mar 1st, 2009 @ 9:54pm

    Software Patents WILL kill open source

    My company, newly started, and bearly even off the ground - runs entirly on free software and the good will of others. We are a non-profit company. Yet.... if Microsoft wins - and those other companies that are paying for licences for patients which dont belong to Microsoft - and they manage to screw with us Open Source guys - we - will - die - my company would be gone within months. I can't afford to pay Microsoft for anything. Hense, why I dont use ANY Microsoft Product - not even Samba because Samba access's microsoft network's - I have no interest in Microsoft, I want nothing to do with their inferior products - and I dont respect ANY Patent by any multinational giant, IBM, BMW and so on included.

    Greedy companies have gotten to big for their shoes... but the fact is that these companies are so big now and they all have their hands in each other's pockets, and couple that with how corrupt the US goverment and judicial system is - we're all screwed - we can't compete with those companies who might as well run the goverment.

    Really.... imagine if Jesus Christ had patiented the Bible... Muslums would have been sued long ago - and perhaps the Jews would be suing also... hell.... c'mon.... can anyone else see how completly retarded any software patent is!!!!! really!!! forget about this bullshit corporate crap. Imagine if someone had patiented the Wheel.... hell, I should Patent Fire! Then everone who strikes a match would have to pay me.

    20 Years this world will be a different place, it will be corrupt and at war - world war. Mark my words and arm yourselves to the teeth.

     

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

  48.  
    identicon
    Anonymous Coward, Sep 30th, 2009 @ 2:03pm

    Re: Re: Re: The problem with your argument...

    Then there's the NTP "patent on e-mail" erm electronic messages over wireless networks. Yeah ... like run SMTP over TCP/IP over ethernet and it's all open and public and yada yada but do it over "wireless" and it's patentable.

    Oh and yes NTP's "technology" err patent on some technology that someone else developed and which they bought is for "electronic messages over wireless networks" and is soooooo sophisticated and high tech that well you know it's just soooo difficult for non-engineers to understand that well a lawyer has to protect it from being stolen.

    Too late folks your selling commodities not patentable innovations: my 6 year old son sending "electronic messages" (XMPP) over "wireless networks" (802.11) to my 10 year old Sun (pizza box). Software patents are anti-competitive and undermine social cultural technological and economic development ... and they are embarrassing.

     

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


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Save me a cookie
  • Note: A CRLF will be replaced by a break tag (<br>), all other allowable HTML will remain intact
  • Allowed HTML Tags: <b> <i> <a> <em> <br> <strong> <blockquote> <hr> <tt>
Follow Techdirt
A word from our sponsors...
Essential Reading
Techdirt Reading List
Techdirt Insider Chat
A word from our sponsors...
Recent Stories
A word from our sponsors...

Close

Email This