07.18.11

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Microsoft Acknowledged Patent System is Broken, But Happily Uses it to Attack Rivals

Posted in Microsoft, Patents at 3:48 am by Dr. Roy Schestowitz

Two-edged sword and all that malarkey

Gun

Summary: The perplexing situation Microsoft is in when it comes to software patents, based on the i4i case and beyond; Apple’s case against Linux mostly falls apart for the time being

Several months ago (3 to be precise) Grant Gross claimed that the “U.S. Supreme Court justices questioned Monday whether they should side with Microsoft and weaken the legal standard needed to invalidate a patent, with some justices suggesting there are alternatives to changing established law.”

This was written in reference to the i4i case — “a case that could make it easier for defenders in infringement lawsuits to invalidate patents,” claimed the author.

“Microsoft, which lost a US$290 million decision in a U.S. district court, has argued that i4i began selling a product with the XML editor included ayear before it applied for the patent. The U.S. Patent and Trademark Office (USPTO) didn’t consider this so-called prior art in granting the patent, but the district court should have, Microsoft lawyer Thomas Hungarargued Monday.”

So even Microsoft recognises that there is a problem within the US patent system, based on this kind of article, yet Microsoft is perfectly happy to exploit this system for anti-competitive purposes/reasons.

“Didn’t Microsoft sell their legacy products with disk formatting before patenting it?”
      –Anonymous
“Looks like another legal spin by the legal spin artists,” remarked on it someone in USENET. “So, if one sells an invention before they patent it, they are not entitled to the fruits of their labour?

“Ludicrous of course, if one were to consider the so called validity of software patents.

“Didn’t Microsoft sell their legacy products with disk formatting before patenting it?”

He added: “I would say that if someone copied such so called invention prior to it being patented, then yes, it is prior art.

“There is no need for SW patents as copyright law is all that is required,” added another person. “You will find prior art at some level in all SW and hence SW should not be patentable. The absurd patent litigation we are seeing today is, in the main, from companies who cannot compete on a level playing field.”

“Agreed,” said the former person, “hence I was being facetious. SW has no business being patented without being a unique integral component of a physical invention. That should exclude general operating systems like Linux and Microsoft Windows, to name a few.

“The smartphone market is a clear example of this. Microsoft, who aren’t able to produce a smartphone people want, resorts to extortion. Apple, who did produce the first truly smartphone, resort to patent suits because android phones are simply a better product and Apple cannot compete on a level playing field,” add the second person to whom the reply was: “Microsoft is nothing more than a monopoly maintenance machine with a large marketing and legal base. They can’t compete on the merits of their products, and thus must resort to other means for profitability.”

Apple and Microdoft are both resorting to software patents simply because they cannot win the battle, not with a long-term win anyway. As Mr. Pogson rightly explains, the real news is that Apple’s case against Android is crumbling in some ways while those behind Apple's patent strategy leave the company.

Some people see the glass half-empty. Others see it half-full. The case of Apple v HTC over Android/Linux is 80% empty and on shaky ground IMHO.

Apple charged HTC with violating 10 patents and the initial decision is that 2 were infringed… Imagine a citizen claiming a neighbour stole his 10 Rolls-Royces and the police notice that the complainant only owned 2… That would result in charges of mischief against the complainant where I come from. The two remaining patents are really shaky and also at issue in Apple v Samsung.

We wrote quite a lot about Apple’s case against HTC — more so than the subsequent litigation against Android because the HTC lawsuit was the first of its kind and it symbolised Apple’s assault on Linux as part of its alignment with that same patents cartel. Given enough time researching old programs and filing for more motions in the court, all of those alleged “patents that Linux infringes on” can probably be invalided or worked around. The case of Oracle against Google helps demonstrate this.

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A Single Comment

  1. twitter said,

    July 18, 2011 at 6:05 pm

    Gravatar

    I’d say that the the crown for first smart phone can be passed back to the late 90′s. There was a phone module available for the Handspring Visor, for example and this was so much a part of the design that all units came with a microphone. These were followed on by the Treo, which was unfortunately crippled by patents that excluded the graffiti handwriting recognition method from the market. We can be sure that this obvious idea was pursued by others such as the maker of Danger.

    Apple’s brief rise and short dominance of the “smart phone” market was more a result of the exclusion of all others than it was any kind of innovation on Apple’s part. Groklaw is calling attention to the harm done to the US market by patents.

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