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Microsoft Trial Misconduct Cost $40 Million

timothy posted more than 5 years ago | from the at-least-he-wasn't-feeling-vindictive dept.

The Courts 231

SpuriousLogic writes "The judge who banned Microsoft from selling its Word document program in the US due to a patent violation tacked an additional $40 million onto a jury's $200 million verdict because the software maker's lawyers engaged in trial misconduct, court records reveal. In a written ruling, Judge Leonard Davis, of US District Court for Eastern Texas, chastised Microsoft's attorneys for repeatedly misrepresenting the law in presentations to jurors.'Throughout the course of trial Microsoft's trial counsel persisted in arguing that it was somehow improper for a non-practicing patent owner to sue for money damages,' Davis wrote. The judge cited a particular incident in which a Microsoft lawyer compared plaintiff i4i, Inc. to banks that sought bailout money from the federal government under the Troubled Asset Relief Program. 'He further persisted in improperly trying to equate i4i's infringement case with the current national banking crisis implying that i4i was a banker seeking a "bailout,"' Davis said."

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MvP (5, Funny)

Anonymous Coward | more than 5 years ago | (#29090111)

Microsoft... vs... patent trolls.. who do I hate??

Re:MvP (4, Funny)

moon3 (1530265) | more than 5 years ago | (#29090379)

Tough call, as it is Alien vs Predator kind of fight.

Whoever wins... (5, Insightful)

Anonymous Coward | more than 5 years ago | (#29090869)

We lose.

Re:MvP (4, Funny)

johannesg (664142) | more than 5 years ago | (#29091149)

Microsoft... vs... patent trolls.. who do I hate??

You are perfectly within your rights to hate both. Doing so has the great advantage that you really don't need to aim carefully, should you decide to be sure from orbit...

Re:MvP (5, Informative)

Anonymous Coward | more than 5 years ago | (#29091237)

While I don't like software patents, I think i4i are not really patent trolls. From what I've read, they actually have a product that plugs into MS Word that does what their patent says it does. So it's not like they applied for a patent and sat around waiting for everyone to adopt XML. i4i have a product, they patented the "technology," and Microsoft simply implemented the same functionality which threaten their product. Like all great American companies, i4i sued.

Re:MvP (1)

V!NCENT (1105021) | more than 5 years ago | (#29091243)

A patent troll is a person, group or company that has not made an (genuine) invention and has no product and/or service that is based around, or makes use of, the patent and sues others for it.

So Microsoft (sometimes patent troll but not in this case) versus i4i (totally not a patent troll but a genuine patent holder)

I guess I'll have to choose Microsoft and see my Karma go further down the drain...

First post? (0)

Anonymous Coward | more than 5 years ago | (#29090117)

Call me crazy, but I would consider it "improper for a non-practicing patent owner to sue for money damages" (although, yes, obviously not illegal). It does not bode well that judges are saying this sort of thing.

On the other hand, it is ironic that it's Microsoft making this argument, as they don't usually practice what they preach.

Re:First post? (5, Informative)

electrofelix (1079387) | more than 5 years ago | (#29090381)

Guessing you missed fact that the company had a product which was rendered obsolete when Microsoft included the product capabilities into Word.

Re:First post? (4, Insightful)

Sj0 (472011) | more than 5 years ago | (#29091915)

It's not the job of judges to determine the value of a law, only to interpret them.

Patent law doesn't say you have to be using the patented device to sue. It never even hints at it. The judge has no authority to make it say that. Microsoft was fined for pretending the law does say or hint at that.

Damnit! I'm torn! (4, Insightful)

erroneus (253617) | more than 5 years ago | (#29090119)

On one hand, it's fun to see Microsoft getting punished, on the other, I happen to agree with Microsoft's argument with regard to patent trolls.

I think Microsoft might have made out better this way anyway. Arguing to invalidate the patent could have hurt them and their practice of patent filing and arguing Bilski could have really blown the lid off of things. In short, they more or less had to defend "software patents" while at the same time finding a legal argument against the plaintiff.

Re:Damnit! I'm torn! (-1, Flamebait)

Anonymous Coward | more than 5 years ago | (#29090157)

Fuck you nigsausage.

Re:Damnit! I'm torn! (0, Offtopic)

erroneus (253617) | more than 5 years ago | (#29090205)

This response appears to be automated and directed solely at me. I'm impressed that someone would go through so much trouble.

Re:Damnit! I'm torn! (-1, Offtopic)

Anonymous Coward | more than 5 years ago | (#29090515)

Your mom is automated.

Re:Damnit! I'm torn! (1)

mcvos (645701) | more than 5 years ago | (#29090185)

On one hand, it's fun to see Microsoft getting punished, on the other, I happen to agree with Microsoft's argument with regard to patent trolls.

It's an odd feeling to find myself agreeing with Microsoft, but in this particular case, I do. On the other hand...

Arguing to invalidate the patent could have hurt them and their practice of patent filing and arguing Bilski could have really blown the lid off of things. In short, they more or less had to defend "software patents" while at the same time finding a legal argument against the plaintiff.

... if MS chose to defend (or not attack) the validity of software patents in general or this patent in particular, but only claimed that the reason it was invalid is because the patent holder wasn't using it, then they get what they deserve. It's a silly patent and they should have attacked it.

Re:Damnit! I'm torn! (3, Insightful)

MightyMartian (840721) | more than 5 years ago | (#29091695)

They should be seeking the patent be thrown out because using markup languages to store documents (including formating, notes, whatever, etc.) has been around for something like forty years.

Re:Damnit! I'm torn! (4, Interesting)

morgan_greywolf (835522) | more than 5 years ago | (#29090211)

I happen to agree with Microsoft's argument with regard to patent trolls.

Which part? Equating the patent troll i4i with a banker looking for TARP bailout money sounds a lot like a Wookie Defense to me. It seem that Microsoft's attorneys should have simply stuck with the facts at hand. Does i4i have an implementation of their patent? Have they ever? And, most importantly, was their patent sufficiently obvious to someone skilled in the art? Remember, the USPTO doesn't have the final say in whether or not a patent is enforceable. The courts, however, do.

MIcrosoft's attorneys need to stop playing silly games and start litigating their case.

Re:Damnit! I'm torn! (4, Interesting)

pjt33 (739471) | more than 5 years ago | (#29090263)

The thing which surprises me is that the story doesn't say anything about a direct punishment of the lawyers. It seems like a straightforward case of contempt of court.

Lawyers? Punished? Hahahahah (5, Interesting)

gavron (1300111) | more than 5 years ago | (#29091171)

You're surprised the lawyers didn't get punished? Sir, perhaps I can point you to www.groklaw.net. SCO has been pushing outside the envelope of ethical litigation since 2003. That's SIX YEARS of doing it. They have received no sanctions, endless do-overs, and are now in a trustee Chapter-11 (instead of Chapter 7) bankruptcy.

CLEARLY lawyers not only DO NOT get punished, but are REWARDED for behaving in this manner.

The good guys (that would be us the humans, as well as the named other parties in the cases) all lose, and the unethical lawyers win.

Cheers,

Ehud

Re:Lawyers? Punished? Hahahahah (1, Insightful)

Anonymous Coward | more than 5 years ago | (#29091891)

Lawyers always win, that is a law of nature.

You may not like it, the same as you may not like gravity, but both are there to stay.

Accept them.

Re:Damnit! I'm torn! (0)

erroneus (253617) | more than 5 years ago | (#29090439)

Yes, the second part -- the fact that they are trolls and not actual inventors, sellers or producers of patented materials.

But I can see why Microsoft would attempt to inject some drama into the proceeding -- it was a jury trial after all. Facts don't mean as much to juries, but dramatic images certainly do. The analogy was bad, to be sure, but I have to wonder if the judge ever warned Microsoft against making stupid arguments and analogies? The punishment for their argument seems rather unusual.

Someone else made a comment about this being "contempt of court" but I have to disagree. Spewing bullshit is at least 50% of all legal practice. If they ruled that as contempt, the legal machine would grind to a halt.

Re:Damnit! I'm torn! (-1, Offtopic)

Anonymous Coward | more than 5 years ago | (#29090537)

Fook yooo nigsausage!

Re:Damnit! I'm torn! (5, Informative)

pjt33 (739471) | more than 5 years ago | (#29091139)

I RTFA (sorry, I know I shouldn't) before making the comment about contempt of court. The summary is roughly a duplicate of the first half of TFA, but the telling phrase is in the second half:

"All these arguments were persistent, legally improper, and in direct violation of the Court's instructions," Davis said.

Directly violating a court's instructions is generally contempt.

Re:Damnit! I'm torn! (5, Interesting)

noundi (1044080) | more than 5 years ago | (#29090487)

Does i4i have an implementation of their patent?

This [i4i.com] seems to be a product which is related to this patent. I don't know, slashdotters seem to be very quick to judge on the behalf of MS, claiming that i4i are patent trolls. I haven't seen any proof that they are, and until I do I'll consider this suit valid. Ironically those just spewing the phrase "patent troll" without providing any proof nor data are what? That's right -- trolls themselves.

Re:Damnit! I'm torn! (0, Flamebait)

LingNoi (1066278) | more than 5 years ago | (#29090949)

Well how about the fact that the company is in Canada and the lawsuit is taking place in Texas. You gotta be kidding, you seriously think this is legit? This company is a parasite. Even its "product" is just some crapware which plugs into word and it's suspect that there is even a product, it looks like they made that page simply for the court case.

Re:Damnit! I'm torn! (5, Interesting)

KillerBob (217953) | more than 5 years ago | (#29091281)

I will not feed the trolls... but... it's like a train wreck...

Even its "product" is just some crapware which plugs into word and it's suspect that there is even a product, it looks like they made that page simply for the court case.

Just because you wouldn't use the product doesn't mean that it doesn't exist. You can call it Crapware all you like, but if they were making money off it, then that's all that matters. They were granted a patent on it, then Microsoft chose to implement it natively into Word, which invalidated their product. They did this without paying for the privileges. My guess is that some MS developper took it as a given that this was a good idea, and threw it into Word. The execs liked it, and they didn't bother to research whether there was competition or a patent on it.

If you were a developper on some widget for a program, you'd patented the methods and technology, and were making your livelihood off it, you'd be screaming bloody murder. The damages are a little excessive, but this is a company that's been put out of business by a developper with significantly more resources available to them deciding to ignore its patents. That's kind of why patents exist in the first place.

Re:Damnit! I'm torn! (2, Insightful)

noundi (1044080) | more than 5 years ago | (#29091309)

Well how about the fact that the company is in Canada and the lawsuit is taking place in Texas. You gotta be kidding, you seriously think this is legit? This company is a parasite. Even its "product" is just some crapware which plugs into word and it's suspect that there is even a product, it looks like they made that page simply for the court case.

First of all, what difference does it make if the company HQ is based in Canada or not? Secondly these are all your assumptions, and you have no data nor proof backing up your theories. With all due respect brother, your assumptions are useless to me and all others whom demand empirical data. Right now you're just trolling, and using words such as "parasite" in such rhetorical manner is not going to help your case.

Re:Damnit! I'm torn! (1)

c6gunner (950153) | more than 5 years ago | (#29091625)

Well how about the fact that the company is in Canada and the lawsuit is taking place in Texas.

What about it? Canadian trials tend to pay out much lower amounts than American trials. If I had the ability to sue someone in either country, I'd take the trial to the US, too.

Re:Damnit! I'm torn! (1)

KDR_11k (778916) | more than 5 years ago | (#29091691)

I find the company name much more suspicious than that. Eye for an eye?

Re:Damnit! I'm torn! (2, Insightful)

BlueKitties (1541613) | more than 5 years ago | (#29091191)

I find it ironic that product is designed to work with Word. I can see why they would want to sue though, seeing as how MS just bundled in software that removes the need for their add on. From what I've read, the patent is on something which strips the raw text from the surrounding tags -- meaning I can call "open" on a file stream in C++, read in the data as a string, all without worrying about the tags (because the tags are logically separated already in a different location.) Eitherway, I'm not a fan of copyright, no matter who's getting f'd'n'the'a. (Though, for the record, this is Slashdot -- everyone hates MS. But they hate patent trolls more, hence the response.)

Re:Damnit! I'm torn! (4, Informative)

wbren (682133) | more than 5 years ago | (#29091585)

I find it ironic that product is designed to work with Word. I can see why they would want to sue though, seeing as how MS just bundled in software that removes the need for their add on.

The problem isn't that Microsoft bundled technology into Word. The problem is that i4i had a patent on said technology, and that Microsoft knew about the patent [informationweek.com] before deciding to "make it obsolete."

From what I've read, the patent is on something which strips the raw text from the surrounding tags -- meaning I can call "open" on a file stream in C++, read in the data as a string, all without worrying about the tags (because the tags are logically separated already in a different location.)

I suggest reading the entire patent [uspto.gov] before trying to summarize. It's significantly more complex than what you described.

Eitherway, I'm not a fan of copyright, no matter who's getting f'd'n'the'a.

We're talking about patents, not copyrights. There's a big difference.

Re:Damnit! I'm torn! (2, Informative)

BlueKitties (1541613) | more than 5 years ago | (#29091735)

I did read it. Tell me what I'm misreading:

"A computer system for the manipulation of the architecture and content of a document having a plurality of metacodes and content by producing a first map of metacodes and their addresses of use in association with mapped content
[...]
Current practice suffers from inflexibility. Documents combining structure and content are inflexible because they tie together structure and content into a single unit which must be modified together. The content is locked into one structure embodied by the embedded codes. Changes to either the structure or the content of the document require a complete new copy of the document. To make changes to the original document structure a new copy of the document must be created. This new copy can either be saved independently resulting in two versions of the document, or it can be saved over the original--effectively destroying it. This is true even if the content does not differ in any way from the original. Similarly if the structure remains identical but the content changes slightly.
[....]
Yet further, there is a difficulty of resolving the markup codes from the structure. Markup codes have to be differentiated from the content stream they are a part of. This involves designating `special` characters or sequences of characters which should be identified and acted upon. This complicates the task of any routine which must work on the document. Any program or procedure which needs to format or understand the document must know all of the special codes and be able to correctly separate them from the content. All routines which work with the document must have exactly the same model of how the embedded codes are formatted or placed. If any operation misinterprets the code sequence even slightly, or mistakes content for formatting, the document or a part thereof will be reduced to meaninglessness.
[....]
Thus, in sharp contrast to the prior art the present invention is based on the practice of separating encoding conventions from the content of a document. The invention does not use embedded metacoding to differentiate the content of the document, but rather, the metacodes of the document are separated from the content and held in distinct storage in a structure called a metacode map, whereas document content is held in a mapped content area. Raw content is an extreme example of mapped content wherein the latter is totally unstructured and has no embedded metacodes in the data stream.
"

You'll have to excuse me, I'm a programmer, not a legal expert. I skimmed the patent a few days ago, but all of that jazz sounds exactly like my summary, only more verbose. Mind elaborating?

Re:Damnit! I'm torn! (1)

noundi (1044080) | more than 5 years ago | (#29091731)

I find it ironic that product is designed to work with Word. I can see why they would want to sue though, seeing as how MS just bundled in software that removes the need for their add on. From what I've read, the patent is on something which strips the raw text from the surrounding tags -- meaning I can call "open" on a file stream in C++, read in the data as a string, all without worrying about the tags (because the tags are logically separated already in a different location.) Eitherway, I'm not a fan of copyright, no matter who's getting f'd'n'the'a. (Though, for the record, this is Slashdot -- everyone hates MS. But they hate patent trolls more, hence the response.)

I agree with you completely. It is ridiculous, but so are MS patents, and so are the rest of the existing software patents. Ridiculous or not they are still valid, and I see no reason why MS can defend their patents and others cannot. To me it seems that people just assume that it's a patent troll simply because it's a lawsuit against MS (who god forbid would never do such a thing). I'm not bashing MS in particular, I've said this before and I'll be happy to say it a thousand times more but luckily HTTP saves me the trouble. [slashdot.org]

Re:Damnit! I'm torn! (1)

z-j-y (1056250) | more than 5 years ago | (#29091267)

you can't be serious. an XML authoring tool? there were tons of such tools a decade ago.

Re:Damnit! I'm torn! (2, Insightful)

noundi (1044080) | more than 5 years ago | (#29091583)

you can't be serious. an XML authoring tool? there were tons of such tools a decade ago.

Please understand my point of view. I'm not saying that this is right nor wrong. If you ask me software patents are one of the most worthless products of mankind. However in the current system I don't see why some should be allowed to file suit, and other not. I don't see why MS should be allowed to hold ridiculous [businessinsider.com] patents and others shouldn't. So don't try to convince me that such patents are idiotic, for you are only preaching to the choir. However I don't see any other way to have this changed other than if the situation would become so absurd that the corporations themselves push for removal of software patents, or at least a serious reform of it. Corporates are very easy to figure out you see: if it means profit, they want it. As long as software patents mean profit no corporation is going to push for a reform, so the only way to have this reform is to play by their own rules and change that simple fact, by making patenting a source of loss.

Re:Damnit! I'm torn! (2, Insightful)

Theaetetus (590071) | more than 5 years ago | (#29090811)

I happen to agree with Microsoft's argument with regard to patent trolls.

Which part? Equating the patent troll i4i with a banker looking for TARP bailout money sounds a lot like a Wookie Defense to me. It seem that Microsoft's attorneys should have simply stuck with the facts at hand. Does i4i have an implementation of their patent? Have they ever? And, most importantly, was their patent sufficiently obvious to someone skilled in the art? Remember, the USPTO doesn't have the final say in whether or not a patent is enforceable. The courts, however, do.

MIcrosoft's attorneys need to stop playing silly games and start litigating their case.

This. Their argument was, essentially, that "we infringed, but the law is wrong." This is as effective as Tenenbaum's argument "yes, I distributed your copyrighted songs, but the law is wrong." Fine argument for the legislature, horrible argument for a court.

Re:Damnit! I'm torn! (1)

Bilbo (7015) | more than 5 years ago | (#29091839)

The problem seems to be though that the courts and the USPTO are stuck in a game of passing the buck.

The USPTO says, "We don't have the resources of domain knowledge to figure out if all patents are valid, so we'll just approve anything that looks reasonable, and then let the courts haggle it out."

For the most part (unless the lawyers specifically steer the case in a different direction), the Courts say, "Well, we're experts in the LAW, not in patents, so if the USPTO granted the patent, then we'll just assume they are valid, and then determine if the person or company infringed them."

They certainly don't care, or don't think they are responsible for determining who is a "Troll" and who is legitimate. So, we're stuck with a system that's easy for people to get in to, but hard to throw the abusers out of....

Re:Damnit! I'm torn! (2, Insightful)

Tom (822) | more than 5 years ago | (#29090419)

On one hand, it's fun to see Microsoft getting punished, on the other, I happen to agree with Microsoft's argument with regard to patent trolls.

Yes, but if you want a law changed, the proper venue is through your lobbyists in Washington DC, not in the courtroom.

As you said, the MS lawyers could have argued on a broader scale, but chose not to. Guess why.

Re:Damnit! I'm torn! (1)

b4dc0d3r (1268512) | more than 5 years ago | (#29091079)

Not entirely true, you can rely on jury nullification to keep a law in place (for your competitors) but give you a free pass. I'm betting the judge didn't like the hinting about nullification - any time the people of the country can just decide laws don't apply, that tends to put the legal profession on edge.

The PROPER way to do it is to change the law, but it won't get changed retroactively unless this particular case gets all the way to the supreme court. Plus, it's not in Microsoft's best interests to fight a court case and then turn around and make it easier for their competitors. That doesn't make any sense.

Plus, MS is fighting for SOME patent reform, but they firmly believe that if you invent something you should be able to capitalize on it. So they don't actually want the laws to go away, which is what a supreme court ruling COULD effectively do depending on how the justices understood the scope. They just want certain parts to be changed, leaving the rest intact. That would be a tricky case to argue, just as it would be a tricky law to get passed.

So the only logical thing left is to do anything you can think of to get out of this case, and leave the mess there for your competitors until you get a decent amount of patent reform that works the way you want it to do. So they chose that and basically told the jury - this law sucks and it's stupid, so just let us ignore it, mkay?

Re:Damnit! I'm torn! (1)

Hurricane78 (562437) | more than 5 years ago | (#29090483)

See it like this: No matter which one of them gets hurt, you always win. :D

Re:Damnit! I'm torn! (1)

Sgt. B (926642) | more than 5 years ago | (#29090519)

I agree also. In the end, Microsoft will still publish their software but at an increased cost due to this mosquito sucking act. If they sat on their patent and did not show any evidence of moving the idea forward, even the patent office can rule this one as a no brainer. I've seen cases of patent-sitting before.

I am not in the least Torn (1)

omb (759389) | more than 5 years ago | (#29091347)

Microsoft has, once again, tried to treat the courts with disdain, In this case in "Persuing a line of argument that the court has rejected", now its counsel have the right to object, and ensure that the court's ruling is manifest in the transcript for an appeal but they must stop flogging a dead horse when told to otherwise they, and their client face scanctions, and in this case got them!

Given Microsoft's record of persistent misconduct in litigation, eg lying at the Anti-Tust trial, contempt in EU proceedings I am amazed that their senior people have avoided jail time.

If an ordinary litigant had tried blatant perjury they would be in Levenworth.

Re:Damnit! I'm torn! (1)

oreaq (817314) | more than 5 years ago | (#29091647)

Comparing patents to the bail-out is not a legal argument it is some circus performance. MS' lawyer are trying to get a emotional decision -- after all bailout are at least currently bad, right? -- not a rational decision based on facts from the jury. The judge thinks that this is inappropriate behavior for an officer of the court. So he punishes them.

Dumb law, dumber jury and dumbest lawyers (4, Insightful)

140Mandak262Jamuna (970587) | more than 5 years ago | (#29090125)

Instead of trying to educate the jury that the whole point of "Extensible" markup language is to extend and customize the files the lawyers were pulling stunts. In the tragedy of errors, I cant decide who to root for.

Re:Dumb law, dumber jury and dumbest lawyers (1)

Opportunist (166417) | more than 5 years ago | (#29090197)

Educating juries is a slippery slope. If you do that, they might expect that every time from now on and that wouldn't be too good an idea for MS in the long run.

Re:Dumb law, dumber jury and dumbest lawyers (1, Interesting)

Anonymous Coward | more than 5 years ago | (#29090285)

IANAL, but am I mistaken in beliveing that any arguments made by Microsoft council could be read in another case. Like in a closing argument a lawyer could say "Microsoft said X about patents in this case, but in this old case they said Y."

Re:Dumb law, dumber jury and dumbest lawyers (2, Informative)

Theaetetus (590071) | more than 5 years ago | (#29091441)

IANAL, but am I mistaken in beliveing that any arguments made by Microsoft council could be read in another case. Like in a closing argument a lawyer could say "Microsoft said X about patents in this case, but in this old case they said Y."

Oh, absolutely. Anything you say creates estoppel, even back in prosecution of a patent. "You said here that this is patentable because it requires a specific machine and the patent issued on that basis... But now you're arguing that any machine infringes."

Re:Dumb law, dumber jury and dumbest lawyers (2, Insightful)

Ash Vince (602485) | more than 5 years ago | (#29091025)

Instead of trying to educate the jury that the whole point of "Extensible" markup language is to extend and customize the files the lawyers were pulling stunts.

Please bear in mind that this case was being conducted in Eastern Texas.

http://en.wikipedia.org/wiki/United_States_District_Court_for_the_Eastern_District_of_Texas [wikipedia.org]

This court has long history of being friendly to patent trolls because of the aging population who will make up the jury and Pro-IP jugdes. Do you really want to try and teach a bunch of 50-60 year olds XML in front of a judge who is bias in favour of the opposing lawyer? Chances are the judge himself has no idea about XML, and any time you brought up what it was to educate the jury as to what it was he would assume that knowledge was not needed to decide on this case since he did not understand it either and probably has no desire to learn.

While the technology the underlies this patent may be blisteringly obvious to anyone who is technologically inclined, patent troll choose this courtroom and this judge specifically to get a non-technical jury who will have no idea what is obvious. This then brings the case to who can get the most convincing expert witness to the completely clueless, the game the patent troll is most adept at.

This is a problem with putting so much power in the hands of the people, if the people also have the right to remain uneducated then you are more likely to get poor outcomes in decisions that can only be made by people who are highly educated.

To dredge up every slashdotters favourite, the car analogy: Would you let someone who could not drive become a driving test examiner?

Not that I am saying that we should abandon juries or democracy, but they both have this inherent problem that will need to be addressed: More and more of what affects our lives can only be understood with years of study and is therefore outside the scope of general knowledge for most of the population.

Re:Dumb law, dumber jury and dumbest lawyers (1)

c6gunner (950153) | more than 5 years ago | (#29091701)

To dredge up every slashdotters favourite, the car analogy: Would you let someone who could not drive become a driving test examiner?

Judging by the quality of the drivers out there at present, I really don't think it would make a difference if all driving examiners were 6 year-olds with developmental disorders.

Re:Dumb law, dumber jury and dumbest lawyers (4, Insightful)

javelinco (652113) | more than 5 years ago | (#29091167)

I have a suggestion - try rooting for the side that is RIGHT. Instead of who you "like better" or "hate a little less." Trust me - the world would be a better place if we could all pull that off.

Re:Dumb law, dumber jury and dumbest lawyers (0)

Anonymous Coward | more than 5 years ago | (#29091519)

The stupidity of the patent is irrelevant. The case was about whether Microsoft infringed the patent, not about whether the patent should have been issued in the first place. Telling the jury the patent is rubbish is as much a legal troll as comparing the plaintiff to a failing bank.

I know it sucks but prior art is not a defense against an infringement suit.

Anyone got a PACER account? (5, Interesting)

H4x0r Jim Duggan (757476) | more than 5 years ago | (#29090127)

If we could see the court transcript, we'd have more info about why MS were fined x, y, z.

If someone has a PACER account, they could put the transcript on archive.org simply with the RECAP plugin:

* https://www.recapthelaw.org/ [recapthelaw.org]

And then we could have a more complete picture on http://en.swpat.org/wiki/I4i_v._Microsoft [swpat.org]

What the transcript could tell us (4, Informative)

H4x0r Jim Duggan (757476) | more than 5 years ago | (#29090189)

If we had the transcript, maybe we could see:

  • Did the judge understand the patent?
  • How did the judge interpret each concept?
  • What misconduct did the judge see?
  • Is the exclusion of future products that remove meta data there because the patent doesn't cover that or because the judge wants to give MS a path to avoid future infringement?
  • Any hints at what MS's possible grounds for further appeal are?

The court transcript, even though it's a public domain document, is only provided to people by the court if they make an account and pay 8c per page. Once you have the page, since it's public domain, you can post it anywhere. RECAP [recapthelaw.org] is a Firefox or IceCat [gnu.org] plugin that can automatically post those public domain transcripts to archive.org so that we can all read them and link to them, and that would help with documenting case law in the USA [swpat.org] on swpat.org, among other things.

Re:What the transcript could tell us (1)

VGPowerlord (621254) | more than 5 years ago | (#29091305)

  • Did the judge understand the patent?
  • How did the judge interpret each concept?

Certainly you meant Jury in those two points.

I read down to... (2, Interesting)

Anonymous Coward | more than 5 years ago | (#29090129)

I read down to "eastern district of texas" before figuring out what was going on.
MS complains that patent trolls should get a life and make a product, judge slaps 40 mil on top of the 200 mil product. Time for software providers to stop doing business in ED Texas (or all of Texas, if necessary). I'm not sure what sort of patent they ran into (probably "putting words onto computer" sometimes equally obvious/prior art'd), but how that could equate to a quarter billions is beyond me.

Fol de Rol (1)

EasyTarget (43516) | more than 5 years ago | (#29090133)

I knew patent trolls employed lawyers, but I had not realised they employed judges too.

Re:Fol de Rol (5, Informative)

miffo.swe (547642) | more than 5 years ago | (#29090145)

Its just that this company isnt a patent troll. Its a former close partner to Microsoft.

Re:Fol de Rol (3, Insightful)

Opportunist (166417) | more than 5 years ago | (#29090183)

How should I picture this? MS stopped paying, so instead of trolling for them we're trolling against them now?

Re:Fol de Rol (5, Informative)

Anonymous Coward | more than 5 years ago | (#29090243)

http://www.theglobeandmail.com/news/national/the-biblical-vengeance-of-i4i/article1253054/ [theglobeandmail.com]

Six years ago, an unusual and powerful alliance approached a tiny Toronto software company with a fateful proposition. Microsoft was helping U.S. intelligence sift through relentless mountains of documents relating to the 9/11 terrorist attacks but had few means to sort them out. This firm, i4i, had the software that could intuit crucial, revelatory patterns that its own software could not.

It wasn't long before Microsoft recognized the value of the firm's technology, and, as it is now famously alleged, pinched it.

Re:Fol de Rol (1)

Workaphobia (931620) | more than 5 years ago | (#29090229)

Why would a plaintiff need to employ a judge when the law is on their side? Sometimes the injustice/corruption exists in the legislative branch of government, you know.

Re:Fol de Rol (4, Insightful)

Pieroxy (222434) | more than 5 years ago | (#29090349)

the law is on their side

Extending the "Extensible markup language" seems like a no-brainer. It is in the name of XML!!! And I thought patents had to be non obvious !

Not really sure on which side the law is on that one. That said, explaining this to a judge might prove to be a complex situation.

Re:Fol de Rol (2, Insightful)

blind biker (1066130) | more than 5 years ago | (#29091205)

Just because XML is eXtendible, doesn't mean that a particular idea implemented through that extension isn't non-trivial (lots of negations, I know...) and hence, patentable.

This is like saying that sailing and navigating a ship was a known skill at the time of James Cook, so his discovery of New Zealand and Australia aren't really discoveries at all. But in fact, he used a lot of skills and was a talented navigator (often stated as the best of his time) to successfully perform his journeys and draw maps that were used for centuries after!

Re:Fol de Rol (2, Insightful)

Theaetetus (590071) | more than 5 years ago | (#29091483)

Extending the "Extensible markup language" seems like a no-brainer. It is in the name of XML!!! And I thought patents had to be non obvious !

A common misconception on Slashdot is that patents are solely defined by their titles. The mere fact that XML has the word "Extensible" doesn't mean that anything you could ever write to extend it is therefore obvious. Consider - once the internal combustion engine was invented, did that make all engine improvements obvious? Fuel injectors? Catalytic converters? How about the new sparkplug-less engines?

Why are American Judges demanding so much money? (5, Insightful)

Anonymous Coward | more than 5 years ago | (#29090159)

$2 million for mp3s, $40 million for a bad argument.

Do these judges send a $10 million bill to toilet paper companies when they have to wipe their backside?

Re:Why are American Judges demanding so much money (1)

O('_')O_Bush (1162487) | more than 5 years ago | (#29090277)

$40m sounds like a lot, but that's 0.07% of microsoft's revenue stream. The judge basically flicked M$ on the ear for that argument.

Re:Why are American Judges demanding so much money (2, Insightful)

Prof.Phreak (584152) | more than 5 years ago | (#29090343)

$40m is still about a million copies of Windows to sell... that's like losing all the revenue stream from sales to a major city.

Re:Why are American Judges demanding so much money (0)

Anonymous Coward | more than 5 years ago | (#29090397)

where can I buy this windows you say for 40$?

Re:Why are American Judges demanding so much money (1)

A. B3ttik (1344591) | more than 5 years ago | (#29090555)

Get a hardware vendor's license and I bet you can get them cheaper than that.

How much does that license cost? (0)

Anonymous Coward | more than 5 years ago | (#29090929)

Hmmm?

Re:How much does that license cost? (0)

Anonymous Coward | more than 5 years ago | (#29091287)

Free.

Re:Why are American Judges demanding so much money (1)

V!NCENT (1105021) | more than 5 years ago | (#29091499)

At Dell when you buy a computer.

Re:Why are American Judges demanding so much money (0)

Anonymous Coward | more than 5 years ago | (#29090295)

A lot of American Judges are just plain idiots.

Re:Why are American Judges demanding so much money (0, Redundant)

velen (1198819) | more than 5 years ago | (#29090305)

$2 million for mp3s, $40 million for a bad argument.

Do these judges send a $10 million bill to toilet paper companies when they have to wipe their backside?

I don't have points to mod you up, but the judges do need to have their heads and their asses examined.

Re:Why are American Judges demanding so much money (4, Insightful)

gnasher719 (869701) | more than 5 years ago | (#29090511)

I don't have points to mod you up, but the judges do need to have their heads and their asses examined.

In this case, I completely disagree.

Microsoft made the argument that a company having a patent but not producing anything shouldn't be able to ask for monetary damages. That is wrong. I can make an invention even though I know clearly that I don't have the money, talent and intention to turn this into a product that can be sold at profit. If I am better at inventing than at marketing it would be ideal to invent things and sell those inventions to others who are better at marketing. The fact that Microsoft uses the invention proves that it is worth money and that damages should be paid.

This is of course completely independent of the question whether the patent should be invalidated, or whether Microsoft is infringing on the patent. It is quite possible that a court outside Texas would have judged in favor of Microsoft, and stupid software patents should be (but are not) invalid, whether they are owned by Microsoft or used to extract money from Microsoft. But that wasn't what the judge complained about: He complained that Microsoft repeatedly told the jury to not award damages for reasons that were not in agreement with the law.

And since they tried to influence a court decision that was about $200 million, making them pay 20 percent for trying to convince the jury to do something that is clearly wrong seems fine.

Re:Why are American Judges demanding so much money (0)

dna_(c)(tm)(r) (618003) | more than 5 years ago | (#29090637)

[...]but the judges do need to have their heads and their asses examined.

Do they have to pull one outside of the other for examination?

Re:Why are American Judges demanding so much money (0, Offtopic)

larry bagina (561269) | more than 5 years ago | (#29090407)

Make [nbcnewyork.com] sure you get plenty of sleep before going to court.

Clifton Williams didn't and he's been sentenced to six months in jail for yawning.

"I was flabbergasted because I didn't realize a judge could do that," Williams' father, Clifton Williams Sr., told the Chicago Tribune. "It seems to me like a yawn is an involuntary action."

Williams, 33, attended his cousin's July hearing at Will County Courthouse in Joliet. His cousin, Jason Mayfield, pled guilty to a felony drug charge. As the judge sentenced Mayfield to two years probation, Williams let out a yawn, an involuntary faux pas in such a formal setting.

Circuit Judge Daniel Rozak thought the yawn was criminal and sentenced Williams to six months in jail, the maximum penalty for contempt of court without a jury trial. Rozak's order said that Williams "raised his hands while at the same time making a loud yawning sound," causing a disrespectful interruption in court.

So in a strange turn of events Mayfield, the felon, will be able to walk freely, while Williams, the yawner, will have to spend at least three weeks behind bars for his offending yawn. But it's not out of character for Rozak.

Contempt of court charges are typically issued when a judge feels someone is challenging or ignoring the court's authority, e.g., yelling at a judge, ignoring subpoenas, appearing in court drunk, etc.

But Rozak runs a tight ship. He has charged people who cuss in reaction to a sentencing and even jailed spectators whose cell phones interrupt proceedings. In fact, the Chicago Tribune found that Rozak has sentenced more spectators to jail for infractions involving cell phones than any other judge in Will County in the last decade.

Of the 30 judges in the 12th Judicial Circuit, Rozak has brought more than a third of all the contempt charges in the last 10 years.

"This is ridiculous -- you've got all these people shooting up kids, and here this boy yawns in court [and gets 6 months]. It's crazy," said Williams' 79-year-old grandmother.

UPDATE -- he was released from 3 weeks. Yes, Three weeks in jail for yawning in court.

Re:Why are American Judges demanding so much money (1, Insightful)

Anonymous Coward | more than 5 years ago | (#29090731)

Sounds more like this judge is a jerk more than anything. I bet rolling your eyes would result in a year of jail with this judge presiding.

Re:Why are American Judges demanding so much money (1)

gbjbaanb (229885) | more than 5 years ago | (#29090865)

Contempt of court charges are typically issued when a judge feels someone is challenging or ignoring the court's authority,

you'd think that bringing the judicial system into disrepute would be grounds for a contempt charge - he should sentence himself to 6 months immediately!

Re:Why are American Judges demanding so much money (1)

kyofunikushimi (769712) | more than 5 years ago | (#29091319)

OK, I've sat in front of a judge and had a sentence dictated to me. Unless the defendant is used to this sort of thing, really couldn't care less, currently on some pretty serious drugs, or trying to be a dick... I can't believe that they could be capable of involuntarily yawning at that particular point in time. But, in all fairness, maybe that's not the case for everyone.

Re:Why are American Judges demanding so much money (2, Insightful)

Shin-LaC (1333529) | more than 5 years ago | (#29090691)

Speaking of which, I wonder if any judge is going to fine the RIAA $40 million for comparing the defendant in a copyright infringement case to a seafaring marauder who terrorizes travelers and disrupts trade.

Only when patents bite Microsoft... (1)

jkrise (535370) | more than 5 years ago | (#29090195)

will they wake up and fight for abolishing software patents. Good to see....

Re:Only when patents bite Microsoft... (2, Informative)

Nesa2 (1142511) | more than 5 years ago | (#29090779)

Unfortunately, there is always more money to be made by companies trolling for patents than coming to a realization how badly designed system is and taking up a fight to have it revised.

It's not like Microsoft is not a patent troll themselves. They made more money over monopolies they hold thanks to the current patent system than they will ever lose by being sued by other companies.

It would take truly revolutionary government leadership to change something like patent system in US. I'd honestly rather see copyright and patent system changed than healthcare... but that's just me.

Judge: Prosecutor! Why you think he dunnit? (0)

Anonymous Coward | more than 5 years ago | (#29090325)

Prosecutor: K, number one, your honor, just look at him.
Defense attorney: He talks like a fag, too.
Prosecutor: ...and b, we've got all this, like, pfff, evidence
[...]
Prosecutor: I know! And I'm all, you gotta be shittin me, but check this out, man. Judge should be, like, guilty! Peace.

pocket lint (0)

Anonymous Coward | more than 5 years ago | (#29090377)

...that is all this and all other fines to Microsoft and the BIG corps has ever amounted to.

How about the judges start with the FBI man from National Treasure ....
SOMEBODY HAS TO GO TO JAIL.

In news reports this morning some hot chick [works for MS? or Faux New?] regurgitated the same "we are innocent and will appeal" and how people are "so used to" using Word they will not know what to do.

How about people that buy computers actually LEARN how to use them and the software that is available.

Remember MS has been convicted 3 times of operating and "illegal monopoly".
How can the system allow IBM and MS to collude in telling netbook builder how to build there machines [read below tech standards to use Winders].

What a sad case this county is.

ODF is immune? According to Groklaw? (5, Informative)

140Mandak262Jamuna (970587) | more than 5 years ago | (#29090387)

First off, I am no lawyer. My understanding of Groklaw [groklaw.net] suggests that ODF would immune to this patent.

The relevant passage:

"Custom XML" refers to content within the file that is of a different XML format, with a separate "custom schema" to describe that content. The problem with such content is that there is no way for a standard to describe how such data should be interpreted, as it is by definition in a "custom format" and can be any kind of data. That is why "custom XML" is not allowed in ODF documents, and that is one of the reasons why OOXML is such a miserable standard.

And this

Interesting, no? There's one more headline, but only to debunk, Matt Asay's Microsoft's 'Custom XML' patent suit could put ODF at risk. Actually, it doesn't, so far as I know. Custom XML was one of the reasons ODF folks thought the OOXML "standard" was crudely designed, and that it had no place in a standard. It was a big discussion, and basically, to the extent I understood it, the issue was this: that it was a short cut on Microsoft's part, so it wouldn't have to do things in the usual standard way but could just keep things as they were, dumping a lot of processing stuff into the format, where, ODF folks said, it didn't belong. The very name should tell you why.

The lawyer should pay the $40M portion (1)

KeithH (15061) | more than 5 years ago | (#29090401)

Setting aside the whole debate over patent trolls, it seems to me that Microsoft hired a particularly incompetant lawyer. This sounds more like misconduct and I'm surprised that the lawyer isn't subject to personal sanctions.

Re:The lawyer should pay the $40M portion (1)

Lonewolf666 (259450) | more than 5 years ago | (#29090759)

I agree in principle, and maybe Microsoft should sue their law firm for damages.

But then again, that misconduct might be Microsoft's idea in the first place. In the last antitrust ligitation (http://en.wikipedia.org/wiki/United_States_v._Microsoft [wikipedia.org] ) they were caught submitting faked videos as evidence. So this could just be another instance of Microsoft playing games with the courts.

Penalize client? (3, Insightful)

Dan East (318230) | more than 5 years ago | (#29090409)

I don't know a lot about the intricacies of the legal system, but why is the client penalized for the behavior or mistakes of the attorney? Does the client dictate or approve every word that comes out of the attorneys mouth in court? If the attorney used misleading wording then shouldn't the attorney be censured or fined and not have that penalty included in the actual judgment?

Maybe this isn't applicable at all, but what if an attorney represented someone guilty of committing a crime, and the judge tacked a few extra years onto the sentence because he didn't like the attorney or what they said?

Re:Penalize client? (4, Informative)

gnasher719 (869701) | more than 5 years ago | (#29090583)

I don't know a lot about the intricacies of the legal system, but why is the client penalized for the behavior or mistakes of the attorney? Does the client dictate or approve every word that comes out of the attorneys mouth in court? If the attorney used misleading wording then shouldn't the attorney be censured or fined and not have that penalty included in the actual judgment?

It happens because it is the client who hired the lawyer. If you do something wrong while acting for your company, the company will quite likely be held responsible for what you do. Same with the lawyer. There is always the possibility to sue your lawyers in a situation like this, if you think that they were reckless or guilty for you losing the money. Let's say if your lawyer appears in court drunk and you lose the case because of that, you might very well have grounds to sue.

Re:Penalize client? (0)

Anonymous Coward | more than 5 years ago | (#29090635)

are you sure it wasn't MS's own internal legal staff that represented them? I tend to agree with gnasher719 regardless.

Re:Penalize client? (4, Interesting)

Scrameustache (459504) | more than 5 years ago | (#29090913)

why is the client penalized for the behavior or mistakes of the attorney?

Why is the client rewarded for the behavior or successes of the attorney?

penalize the crook (1)

viralMeme (1461143) | more than 5 years ago | (#29091805)

"what if an attorney represented someone guilty of committing a crime, and the judge tacked a few extra years onto the sentence because he didn't like the attorney or what they said?"

If the lawyer wilfully lied to the Court, then the Judge is fully entitled to issue a fine, for contempt of court.

Let me guess ... (1)

MacTO (1161105) | more than 5 years ago | (#29090467)

The judge is pissed off that his district is switching from WordPerfect to Word.

Re:Let me guess ... (0)

Anonymous Coward | more than 5 years ago | (#29090717)

That would have been funny in 1999. You should really get out more.

OTOH, this *is* Texas we're talking about, no?

Re:Let me guess ... (1)

bishiraver (707931) | more than 5 years ago | (#29091727)

FWIW, WordPerfect is the defacto standard in the legal world. Don't ask me why...

Stop feeding the trolls! (1)

iPhr0stByt3 (1278060) | more than 5 years ago | (#29090601)

Dag nabbit, stop feeding the patent trolls! they'll just breed...

If only... (0)

Anonymous Coward | more than 5 years ago | (#29090777)

Ahh, if only Microsoft would get a penny for every time it's hit with a $40M fine for trial misconduct...

Re:If only... (1)

V!NCENT (1105021) | more than 5 years ago | (#29091655)

Difficult humor? :) Nice...

Wow (2, Interesting)

hugg (22953) | more than 5 years ago | (#29091437)

Can any law-talking folk explain how the $290 million figure is derived? And if the state of Texas collects tax on this award? Not being conspiratorial, I really don't know much about the follow-the-money aspect of these cases.

Re:Wow (2, Informative)

gpf2 (1609755) | more than 5 years ago | (#29091931)

And if the state of Texas collects tax on this award?

The State of Texas has no income tax.
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