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Patents Roundup: Microsoft Patent Tax, FireStar-Red Hat Revisited, US Patent Crisis

Summary: Microsoft uses ActiveSync to tax competitors; interesting details surface about FireStar's case against Red Hat; the USPTO is challenged for its poor performance

BITS and pieces that appear in the news play a role in the adoption of Free software, even though they are legal issues rather than technical. This post takes an overview.

Microsoft



Microsoft has just found another ActiveSync victim from which to extract patent tax. With new licensing deals, Microsoft hopes to extract revenue out of patents and other imaginary products. We gave some more ActiveSync examples in [1, 2]. Microsoft basically charges for the use of protocols and even Android (Linux) is harmed by it:

DATAVIZ has made available a version of its Roadsync client for Microsoft ActiveSync via Android Market, allowing users of Android phones to link with Exchange email servers.


The Wall Street Journal has this new article about the patent bill. From the opening:

Twelve Republican U.S. senators on Thursday sent a letter to Senate leaders criticizing pending patent legislation, saying the bill "threatens to diminish the value and enforceability of U.S. patent rights."

The Oct. 15 letter backs criticism against the legislation being levied by independent inventors and academics who argue the bills favor major technology companies. If approved the legislation would be the most sweeping rewrite of federal patent law in 50 years.

Critics say two similar bills now in Congress would broadly make it harder for individuals, universities and start-ups to defend their inventions against companies with deeper pockets.


Microsoft too is mentioned in the full article, which states that "Microsoft and IBM are two of the most active companies involved in filing patents." IBM makes about a billion dollars per year from taxation of competitors and IBM is what the FFII calls a "fake" supporter when it comes to patents. IBM's actions speak for themselves.

Law.com has this article about the Eastern District of Texas, which is known as patent trollville. Microsoft is mentioned also:

The story, of course, is also bigger than Powers and Davis. There's the fact that Microsoft is signing off on both the trial strategy and the briefs being filed. That suggests that the big old software company is taking a more aggressive tack in the Eastern District these days, not just backing up its lawyer. After losing a couple of big cases there, it seems like the company is eager to show up a judge who it believes did it wrong. Sort of like in baseball when there's a questionable call and the manager runs out on the field to jaw with the umpire: The purpose is not only to get the call reversed, but to make him think twice the next time.


Red Hat



The FireStar case [1, 2, 3, 4, 5, 6] may be old, but the Prior Art Blog has some interesting new details about those who were involved:

* In October 2006, in the lawsuit's early stages, FireStar told Red Hat it wanted $100 million to settle its patent claims—and Red Hat said "there was nothing left to discuss."

[...]

After the case was underway, FireStar apparently tired of the patent litigation game. The company was reluctant to make engineers available for deposition because, Foley's brief states, they "were focused on product development rather than the Red Hat case and as a result were not sufficiently responsive." By December 2007, the bankers at Amphion had agreed to take the suit off FireStar's hands by creating DataTern, a shell company solely focused on patent enforcement that acquired the patent in early 2008. (Amphion also agreed to compensate FireStar for employee time spent on the litigation.) At about the same time, DataTern stopped paying Foley's bills, and turned to IP Nav and its lawyers to press the suit.

Those lawyers—Texas solo Dan Perez and Michigan-based Patrick Anderson, both of whom frequently work for Spangenberg and his patent companies—quickly hammered out the $4.2 million settlement. The figure, Foley notes, was lower the total litigation budget it had agreed to with FireStar. If the plaintiffs were willing to settle for so little, Foley lawyers Michael Lockerby and Greg Neppl write, a deal could have been struck "without the expenditure of much in the way of legal fees."


Patent Crisis



The following stories ought to speak for themselves:

EFF Challenges VOIP Systems Patent

As part of its Patent Busting Project, the Electronic Frontier Foundation claims it has discovered a prior patent and published reference material that should invalidate a patent granted to Acceris for implementing VOIP using analog telephones as endpoints.


USPTO Removes Rule Changes

The United States Patent and Trademark Office (Office) published a final rule in the Federal Register in August of 2007 to revise the rules of practice for patent cases pertaining to continuing applications and requests for continued examination practices, and for the examination of claims in patent applications (Claims and Continuations Final Rule). The Office is revising the rules of practice in this final rule to remove the changes in the Claims and Continuations Final Rule from the Code of Federal Regulations.


Bits and Bytes

* I am teaching obviousness this week in my introductory patent law course here at the University of Missouri School of Law. The Justice Douglas concurrence in the 1950 A&P case always gives me pause: o "The Constitution never sanctioned the patenting of gadgets. Patents serve a higher end--the advancement of science."


Are Technology Patents Lost on Jurors?

Attorney Tucker Griffith brainstormed for months about how to best illustrate the inner-workings of his client's patented technology.

[...]

"I've seen judges ask questions that show they're confused," said Menard, who works in areas of electromechanical technology such as hydraulics and pneumatics. "You have 48 minutes of hearings and the judge asks a question that shows they have no clue. Then the lawyers just look at each other and say, 'That was a waste of time.'"


Change is still needed urgently. Can Kappos deliver?

David Kappos



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