EditorsAbout the SiteComes vs. MicrosoftUsing This Web SiteSite ArchivesCredibility IndexOOXMLOpenDocumentPatentsNovellNews DigestSite NewsRSS

04.18.11

Microsoft’s Choice: Patent-Trolling to Death or Real Patent Reform

Posted in America, Apple, GNU/Linux, Google, Microsoft at 5:47 pm by Dr. Roy Schestowitz

Nathan Myhrvold

Summary: The US patent system preys on Canadians as Microsoft’s infringement goes to SCOTUS and RIM wants a patent shield shortly after Microsoft’s patent troll, Nathan Myhrvold (the company’s extortion arm), put a tax on every BlackBerry; Apple too goes trigger-happy against Linux, having given investment money to this same patent troll

Microsoft should just defect to the side which works to abolish software patents and if not, then shareholders of Microsoft should start criticising the company’s strategy. As things stand at the moment, Microsoft is bombarded with patent lawsuits and Groklaw explains why Free software cares about the i4i case which we last mentioned this morning (it goes beyond the Canadian media due to escalation to SCOTUS, which got the lawyers [1, 2] and the MSBBC paying closer attention). To quote Groklaw:

Today is the day scheduled for oral argument before the US Supreme Court in the appeal of the i4i v. Microsoft patent litigation. The appeal is focused on an issue that matters to FOSS a great deal. EFF, Public Knowledge, and the Apache Foundation have filed an amicus brief [PDF] that explains to the court why it matters so much and with such particularity to the FOSS community. I’ve done it as text for you.

I’ll let them explain the details, but the big picture is that US patent law, largely due to the Federal Circuit’s broadening of plaintiffs’ rights, is hard on defendants and harder still on FOSS defendants, because FOSS uses a development model that doesn’t match the patent law as currently interpreted by the Federal Circuit.

The issue before the US Supreme Court is this, in plain English: how hard should it be to prove that a patent that the USPTO has issued is invalid? How about if you have evidence that the USPTO examiner never looked at? Should juries assume that the USPTO got it right? I smile just writing that. With FOSS software, it’s almost impossible for an examiner to find prior art, unless it’s been patented, which it almost never is, given the restrictions on what examiners can search through. And you may be surprised when you read what the courts require as proof. I am pretty sure that after you read this brief, you’ll see how unbalanced the current system is, how it disadvantages FOSS defendants, and hopefully you’ll notice some things you can do to help balance out the playing field. I hope the court sees the unfairness too, and I hope they care.

The bottom line for me remains that software and patents need to get a divorce. But anything that we or the courts or Congress can do to ameliorate the strange and damaging tilt toward patent plaintiffs to the detriment of defendants is to the good. The law is supposed to be fair to both plaintiffs and defendants, but with patent law, it absolutely isn’t, as the brief will show you. The damage being done to innovation is enormous already, and with Microsoft on a march to rape and pillage FOSS and force the community — most especially Android — to pay royalties for patents that could be invalidated in a more fair system but which it can use as anticompetitive weapons unless something is done to shortcircuit their strategy, this case is vitally important.

As Mr. Arthur put it, “Microsoft seeks to weaken software patent rules at US Supreme Court”:

A software patent case in which Microsoft was accused of wilfully infringing a patent on XML – and forced to suspend sales of Word and Office – reaches the US Supreme Court on Monday afternoon UK time and could have a wide-ranging effect on future litigation.

How long can Microsoft pretend that software patents which are asserted against Microsoft are invalid whereas those which is uses to extort others are valid? In some cases, as in the VirnetX case for example, Microsoft must pay a lot of money to a company which according to this new report “does not currently have any sources of revenue from operations.”

It is a patent troll. When Microsoft quits areas like mobile (due to failure), Microsoft’s mobile division too will become a patent troll. Microsoft is currently busy trying to extort all sellers of Android/Linux, so Google, in turn, is competing to inherit the patent portfolio which currently ‘belongs’ to Nortel. There is competition over it, reportedly from RIM [1, 2, 3, 4], which is the latest victim to be massively extorted by the world's largest patent troll, Microsoft's very own patent troll, Intellectual Ventures (it also extorted Android, at least at Samsung and HTC).

Here is a new pinion piece by Doug Lichtman (at the New York Times). It implies rather than states that the patent office has been subverted by leeches like Intellectual Ventures. To quote: [via Groklaw]

ON Monday the Supreme Court will consider whether to fundamentally alter the way American patent law is litigated. Specifically, in the context of an otherwise unremarkable patent dispute, the Court has promised to decide the degree to which juries should be allowed to question whether a patent should have been issued at all.

It’s a critical issue: the current approach, under which juries are explicitly discouraged from questioning a patent’s validity, all too often means that dubious patents are nevertheless enforced. That inhibits innovation, the very thing that patent law is supposed to encourage.

[...]

These problems could in theory be fixed with more money. But resources aren’t the only issue. The extent and quality of Patent Office review is also limited by the fact that the process is not adversarial. Indeed, the only parties involved in Patent Office review are the applicant and the applicant’s lawyers — people with an obvious incentive to see the application move forward. Contrast that with litigation, where patent plaintiffs have to square off against very motivated patent defendants.

The last bit there is important. it validates calls to abolish the patent office or reboot it such that it actually serves the public and not the lobbyists of Bill Gates and his buddy Nathan Myhrvold. Microsoft does not want software patents to go away because people up there at the top of Microsoft are still cashing in, at the expense of everyone else. That’s what patents are for, they are simply a monopolist’s dream. Apple is no better in that regard, e.g. with its latest anti-Linux patent lawsuit. Boycott Apple, the expensive imitators.

“We’ve always been shameless about stealing great ideas.”

Steve Jobs

Share this post: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Digg
  • del.icio.us
  • Reddit
  • co.mments
  • DZone
  • email
  • Google Bookmarks
  • LinkedIn
  • NewsVine
  • Print
  • Technorati
  • TwitThis
  • Facebook

If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

Pages that cross-reference this one

A Single Comment

  1. twitter said,

    April 20, 2011 at 12:13 am

    Gravatar

    Apple has added “look and feel” trademark violations to their attack on Android.

    Apple’s new lawsuit against Samsung, made public today, shows that the company is willing to go beyond patents to hinder its competitors in the mobile device market. [the company claims] Samsung has violated Apple’s trademarks and “trade dress,” which is a more subjective claim that trademark owners can bring over the packaging and “look and feel” of their products.

    Yes, the same kinds of charges they made back in the 80′s.

What Else is New


  1. The Patent Trolls' Lobby, Bristows and IAM Among Others, Downplays Darts-IP/IP2Innovate Report About Rising If Not Soaring Troll Activity in Europe

    Exactly like last year, as soon as IP2Innovate opens its mouth Bristows and IAM go into "attack dog" mode and promote the UPC, deny the existence or seriousness of patent trolls, and promote their nefarious, trolls-funded agenda



  2. Links 20/2/2018: Mesa 17.3.5, Qt 5.11 Alpha, Absolute 15.0 Beta 4, Sailfish OS 2.1.4 E.A., SuiteCRM 7.10

    Links for the day



  3. Replacing Patent Sharks/Trolls and the Patent Mafia With 'Icons' Like Thomas Edison

    The popular perceptions of patents and the sobering reality of what patents (more so nowadays) mean to actual inventors who aren't associated with global behemoths such as IBM or Siemens



  4. The Patent Trolls' Lobby is Distorting the Record of CAFC on PTAB

    The Court of Appeals for the Federal Circuit (CAFC), which deals with appeals from PTAB, has been issuing many decisions in favour of § 101, but those aren't being talked about or emphasised by the patent 'industry'



  5. Japan Demonstrates Sanity on SEP Policy While US Patent Policy is Influenced by Lobbyists

    Japan's commendable response to a classic pattern of patent misuse; US patent policy is still being subjected to never-ending intervention and there is now a lobbyist in charge of antitrust matters and a lawyer in charge of the US patent office (both Trump appointees)



  6. The Patent Microcosm's Embrace of Buzzwords and False Marketing Strives to Make Patent Examiners Redundant and Patent Quality Extremely Low

    Patent maximalists, who are profiting from abundance of low-quality patents (and frivolous lawsuits/legal threats these can entail), are riding the hype wave and participating in the rush to put patent systems at the hands of machines



  7. Today, at 12:30 CET, Bavarian State Parliament Will Speak About EPO Abuses (Updated)

    The politicians of Bavaria are prepared to wrestle with some serious questions about the illegality of the EPO's actions and what that may mean to constitutional aspects of German law



  8. Another Loud Warning From EPO Workers About the Decline of Patent Quality

    Yet more patent quality warnings are being issued by EPO insiders (examiners) who are seeing their senior colleagues vanishing and wonder what will be left of their employer



  9. Links 19/2/2018: Linux 4.16 RC2, Nintendo Switch Now Full-fledged GNU/Linux

    Links for the day



  10. PTAB Continues to Invalidate a Lot of Software Patents and to Stop Patent Examiners From Issuing Them

    Erasure of software patents by the Patent Trial and Appeal Board (PTAB) carries on unabated in spite of attempts to cause controversy and disdain towards PTAB



  11. The Patent 'Industry' Likes to Mention Berkheimer and Aatrix to Give the Mere Impression of Section 101/Alice Weakness

    Contrary to what patent maximalists keep saying about Berkheimer and Aatrix (two decisions of the Federal Circuit from earlier this month, both dealing with Alice-type challenges), neither actually changed anything in any substantial way



  12. Makan Delrahim is Wrong; Patents Are a Major Antitrust Problem, Sometimes Disguised Using Trolls Somewhere Like the Eastern District of Texas

    Debates and open disagreements over the stance of the lobbyist who is the current United States Assistant Attorney General for the Antitrust Division



  13. Patent Trolls Watch: Microsoft-Connected Intellectual Ventures, Finjan, and Rumour of Technicolor-InterDigital Buyout

    Connections between various patent trolls and some patent troll statistics which have been circulated lately



  14. Software Patents Trickle in After § 101/Alice, But Courts Would Not Honour Them Anyway

    The dawn of § 101/Alice, which in principle eliminates almost every software patent, means that applicants find themselves having to utilise loopholes to fool examiners, but that's unlikely to impress judges (if they ever come to assessing these patents)



  15. In Aatrix v Green Shades the Court is Not Tolerating Software Patents But Merely Inquires/Wonders Whether the Patents at Hand Are Abstract

    Aatrix alleges patent infringement by Green Shades, but whether the patents at hand are abstract or not remains to be seen; this is not what patent maximalists claim it to be ("A Valentine for Software Patent Owners" or "valentine for patentee")



  16. An Indoctrinated Minority is Maintaining the Illusion That Patent Policy is to Blame for All or Most Problems of the United States

    The zealots who want to patent everything under the Sun and sue everyone under the Sun blame nations in the east (where the Sun rises) for all their misfortunes; this has reached somewhat ludicrous levels



  17. Berkheimer Decision is Still Being Spun by the Anti-Section 101/Alice Lobby

    12 days after Berkheimer v HP Inc. the patent maximalists continue to paint this decision as a game changer with regards to patent scope; the reality, however, is that this decision will soon be forgotten about and will have no substantial effect on either PTAB or Alice (because it's about neither of these)



  18. Academic Patent Immunity is Laughable and Academics Are Influenced by Corporate Money (for Steering Patent Agenda)

    Universities appear to have become battlegrounds in the war between practicing entities and a bunch of parasites who make a living out of litigation and patent bubbles



  19. UPC Optimism Languishes Even Among Paid UPC Propagandists Such as IAM

    Even voices which are attempting to give UPC momentum that it clearly lacks admit that things aren't looking well; the UK is not ratifying and Germany make take years to look into constitutional barriers



  20. Bejin Bieneman Props Up the Disgraced Randall Rader for Litigation Agenda

    Randall Rader keeps hanging out with the litigation 'industry' -- the very same 'industry' which he served in a closeted fashion when he was Chief Judge of the Federal Circuit (and vocal proponent of software patents, patent trolls and so on)



  21. With Stambler v Mastercard, Patent Maximalists Are Hoping to Prop Up Software Patents and Damage PTAB

    The patent 'industry' is hoping to persuade the highest US court to weaken the Patent Trial and Appeal Board (PTAB), for PTAB is making patent lawsuits a lot harder and raises the threshold for patent eligibility



  22. Apple Discovers That Its Patent Disputes Are a Losing Battle Which Only Lawyers Win (Profit From)

    By pouring a lot of money and energy into the 'litigation card' Apple lost focus and it's also losing some key cases, as its patents are simply not strong enough



  23. The Patent Microcosm Takes Berkheimer v HP Out of Context to Pretend PTAB Disregards Fact-Finding Process

    In view or in light of a recent decision (excerpt above), patent maximalists who are afraid of the Patent Trial and Appeal Board (PTAB) try to paint it as inherently unjust and uncaring for facts



  24. Microsoft Has Left RPX, But RPX Now Pays a Microsoft Patent Troll, Intellectual Ventures

    The patent/litigation arms race keeps getting a little more complicated, as the 'arms' are being passed around to new and old entities that do nothing but shake-downs



  25. UPC Has Done Nothing for Europe Except Destruction of the EPO and Imminent Layoffs Due to Lack of Applications and Lowered Value of European Patents

    The Unified Patent Court (UPC) is merely a distant dream or a fantasy for litigators; to everyone else the UPC lobby has done nothing but damage, including potentially irreparable damage to the European Patent Office, which is declining very sharply



  26. Links 17/2/2018: Mesa 17.3.4, Wine 3.2, Go 1.10

    Links for the day



  27. Patent Trolls Are Thwarted by Judges, But Patent Lawyers View Them as a 'Business' Opportunity

    Patent lawyers are salivating over the idea that trolls may be coming to their state/s; owing to courts and the Patent Trial and Appeal Board (PTAB) other trolls' software patents get invalidated



  28. Microsoft's Patent Moves: Dominion Harbor, Intellectual Ventures, Intellectual Discovery, NEC and Uber

    A look at some of the latest moves and twists, as patents change hands and there are still signs of Microsoft's 'hidden hand'



  29. Links 15/2/2018: GNOME 3.28 Beta, Rust 1.24

    Links for the day



  30. Bavarian State Parliament Has Upcoming Debate About Issues Which Can Thwart UPC for Good

    An upcoming debate about Battistelli's attacks on the EPO Boards of Appeal will open an old can of worms, which serves to show why UPC is a non-starter


CoPilotCo

RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

CoPilotCo

Recent Posts