Beta
×

Welcome to the Slashdot Beta site -- learn more here. Use the link in the footer or click here to return to the Classic version of Slashdot.

Thank you!

Before you choose to head back to the Classic look of the site, we'd appreciate it if you share your thoughts on the Beta; your feedback is what drives our ongoing development.

Beta is different and we value you taking the time to try it out. Please take a look at the changes we've made in Beta and  learn more about it. Thanks for reading, and for making the site better!

EFF, Apache Side With Microsoft In i4i Patent Case

Soulskill posted about 4 years ago | from the of-pots-and-kettles dept.

Microsoft 83

msmoriarty writes "Looks like Microsoft has gained some unlikely allies in its ongoing (and losing) i4i XML patent dispute: the Electronic Frontier Foundation and the Apache Software Foundation. The reason? Microsoft has decided the strategy for its Supreme Court appeal will be to argue that the standards of proof in patent cases are too high — this from a company that has thousands of patents it regularly defends. The EFF explains in a blog post why it decided to file the 'friend of the court' brief on Microsoft's side."

Sorry! There are no comments related to the filter you selected.

EFF (4, Funny)

Nerdfest (867930) | about 4 years ago | (#33767552)

Electric Frontier Foundation. Man, you're old-school.

Re:EFF (2, Informative)

binarylarry (1338699) | about 4 years ago | (#33767588)

I saw the Electric Frontier Foundation play at Madison Square Garden in 71'.

Man what a groove fest baby

Re:EFF (0, Offtopic)

nacturation (646836) | about 4 years ago | (#33767664)

It was Dyn-O-Mite!

Re:EFF (0)

Anonymous Coward | about 4 years ago | (#33774960)


MICROSOFT is just willing to see the rules being applied to smaller players... but not to MICROSOFT.

So much for the sake of "Justice" (which is meaningless if not applied to all).

Either patents are bad (and should be scrapped) or they are good.

But that must be for ALL: including those who usually ransom the world with THEIR patents, like MICROSOFT.

"Justice" and money simply cannot occupy the same space at the same time.

Re:EFF (1)

raddan (519638) | about 4 years ago | (#33767882)

I thought it was the Electric Frobulation Foundation.

Re:EFF (0)

Anonymous Coward | about 4 years ago | (#33768134)

It's the Electric Fellatio Foundation. It has been banned in Singapore, though.

Re:EFF (1)

Thinboy00 (1190815) | about 4 years ago | (#33768682)

Brought to you by Frobozz Electric!

Re:EFF (1)

HermMunster (972336) | about 4 years ago | (#33776108)

You can side against patents. Software patents are especially onerous. But Microsoft just finished filing suit against others over patents. And in the i4i case Microsoft did steal and did so knowingly. This process that Microsoft used against i4i is exactly what they have been doing for the past 20 years--taking other companies ideas and incorporating them into their products, normally in hopes of killing the other company.

Re:EFF (1)

Coren22 (1625475) | about 4 years ago | (#33787062)

Actually, not quite accurate. From the EFF link:

In this case, Microsoft had indeed argued that i4i's patent was invalid because the disclosed invention had been embodied in a software product sold in the United States more than a year before the patent application was filed prior art that the patent examiner did not consider.

so, as Microsoft is asserting, they did not steal the invention from i4i, but from someone else a year before who did not have a patent.

Damn hippies... (0, Troll)

santax (1541065) | about 4 years ago | (#33767566)

Don't get me wrong, I normally am on the EFF side of things, but if you write this: Today EFF, joined by Public Knowledge, the Computer & Communications Industry Association and the Apache Software Foundation, filed an amicus brief asking the U.S. Supreme Court to hear a case in which Microsoft is trying to make it easier to invalidate an issued U.S. patent. Well... than you did not get it and you lack any connection to the real world. And despite this prob being a bit of 'fun'... rest assure, at MS they take this very serious.

Re:Damn hippies... (-1, Offtopic)

Anonymous Coward | about 4 years ago | (#33767748)

Is this a new syntax for computer languages? If ... Than statements?

Re:Damn hippies... (3, Interesting)

Darkness404 (1287218) | about 4 years ago | (#33767772)

I think Microsoft and the rest of the software companies have realized that patent-trolls do more harm than good. The thing Microsoft wants isn't profit anymore, they have enough of that but rather influence, because influence will help them with support contracts, where they can make the easy money. All Microsoft really has to do is keep Windows how it is to make there be little to no learning curve and they've won the OS market. Apple still shows no sign of slowing down their overpriced hardware, yes, I know if you put everything that Apple puts in their machines you get essentially the same price, but most people don't have a desire to spend $1,000+ on a laptop that can do, for them, everything a $500 machine or cheaper can. Linux keeps getting more user friendly every day but it still isn't Windows and it still isn't pre-loaded on most machines by default (or when it is, its simply marketed as a free alternative to Windows lacking some features rather than a viable alternative OS).

If Microsoft can keep doing what they are doing, they can continue to rake in profits. Heck, the more patents they squash the easier developing is for them so they can keep more of the profits.

In all honesty, I don't think many corporations enjoy patenting everything, but with the way that the system is, if you don't have the patent you don't know who is going to try to sue you next...

Re:Damn hippies... (3, Informative)

Penguinisto (415985) | about 4 years ago | (#33767808)

I think Microsoft and the rest of the software companies have realized that patent-trolls do more harm than good.

I call bullshit [slashdot.org] .

Re:Damn hippies... (1, Insightful)

Anonymous Coward | about 4 years ago | (#33767846)

It's interesting to notice M$ is suing Motorola instead of Google.

This is patent troll behaviour if I ever saw one: why sue ONE if you sue many and make a lot of money, erm, licensing agreements?

This must be some quite weird long term strategy from EFF, one I cannot even understand...

Re:Damn hippies... (4, Interesting)

morgan_greywolf (835522) | about 4 years ago | (#33768168)

It's interesting to notice M$ is suing Motorola instead of Google.

Not really. Google doesn't make phones. All they do is provide some specifications and some (open) source code. The people to sue are the people making and selling the products, not someone simply providing the tools to make and sell products.

IOW, if you designed a new engine and patented some aspect of that engine, you don't sue the designer of a competing engine that infringes patents, you sue the car companies that put that engine in their cars.

Not that I normally defend Microsoft's behavior, but they did pick the appropriate defendant in this case.

Re:Damn hippies... (1)

exomondo (1725132) | about 4 years ago | (#33790096)

IOW, if you designed a new engine and patented some aspect of that engine, you don't sue the designer of a competing engine that infringes patents, you sue the car companies that put that engine in their cars.

Why? By that logic a sound business strategy would be to develop a product based on patented technology and just sell it to people that include it in their products so they're the ones that get sued.

Re:Damn hippies... (2, Insightful)

Your.Master (1088569) | about 4 years ago | (#33767906)

That's not a contradiction. For instance, that's the exact behaviour you'd expect of a person who ranked three hypothetical conditions like this:

1. Nobody can be a patent troll.
2. Everybody can be a patent troll.
3. Everybody, except you, can be a patent troll.

Re:Damn hippies... (2, Insightful)

Anonymous Coward | about 4 years ago | (#33768022)

Except MS actually does stuff.

Re:Damn hippies... (0)

Anonymous Coward | about 4 years ago | (#33769736)

> Except MS actually does stuff.

Except MS actually copies stuff.

FTFY.

And that's the biggest irony...

PS: And, before I forget, let's cut the BS short, shall we? We all know M$ wants Motorola to not only license W7 Phones, but also to stop doing Android ones and start doing W7 (actually, at this point, M$ wants _anyone_ doing W7 phones..) M$ execs got a paycut: the climate there probably is "everything goes".

Re:Damn hippies... (4, Interesting)

Grond (15515) | about 4 years ago | (#33768194)

I think Microsoft and the rest of the software companies have realized that patent-trolls do more harm than good.

I call bullshit.

By what standard is Microsoft a patent troll in that instance (or any other instance)? It makes and sells products that incorporate the claimed features, and it licenses the patents to others. It's as far from a non-practicing entity as you can get. It's also suing a company that definitely has the resources to defend itself. It's not using patents as a cudgel against some upstart competitor.

Someone mentioned that Microsoft only sued one company. The others Android handset makers likely have licenses, especially given that they make Windows Mobile / Windows Phone 7 phones.

I suppose you could define a patent troll as "the patentee in a patent infringement lawsuit," but that's not a very useful definition.

Re:Damn hippies... (2, Informative)

symbolset (646467) | about 4 years ago | (#33768716)

Microsoft sued HTC before and got a settlement. They're trolling [google.com] . These lawsuits are nothing more than advertising for their Windows Phone 7 phone, which offers indemnification against lawsuits from... them [google.com] . "That's a nice phone you got there. It would be a shame if anybody sued you over it."

Microsoft is suing their own customers here, and not retail customers, but billion-dollar manufacturing partners. That's not a good plan. SCO tried that plan and even with the Microsoft-backed investments from unsuccessfully indirect [groklaw.net] partners, it didn't work out for SCO.

The patents are bullshit. They're software patents, and even Microsoft admits almost all [groklaw.net] software patents are bullshit. Microsoft is looking for help from all of us to solve this argument for them both ways in favor. It's a fool's game.

If this is their plan to put Windows Phone 7 over then they're hosed. "Buy it or we'll sue you" never works.

Re:Damn hippies... (0)

Anonymous Coward | about 4 years ago | (#33769744)

It's not trolling if they make a competitive product, dumbass. Just because you sue doesn't make you a troll.

Just because you're making doesn't stop you troll (0)

Anonymous Coward | about 4 years ago | (#33770116)

Just because you're making doesn't stop you trolling. MS aren't really making a product. They're trying to license OTHER PEOPLE to make a product.

Go ahead: try and buy a Microsoft-made W7 mobile phone.

MS may not be trolling (I think they're FUDDING myself, rather than trolling, but the difference in intent is very similar) but their product isn't why they aren't trolling, dumbass.

Re:Damn hippies... (1)

exomondo (1725132) | about 4 years ago | (#33790134)

They're trolling [google.com] .

What's your definition of 'trolling' in this context?

Trolling (1)

symbolset (646467) | about 4 years ago | (#33843896)

The action is not a direct dialog with the respondent and it has no hope of success with the target. It's an action to elicit motion from an outside audience. They're not trolling Moto here, they're trolling everybody else. If Microsoft gets other licensees for their IP, or some traction with WP7, the bait is took. Maybe "Chumming" is a better word than trolling, but trolling is a better understood symbol.

Microsoft has no hope of successfully suing Motorola over cellular software patents. They have to know that. Motorola invented the cellular phone. Moto has tens of thousands of patents in the field, and emerging technologies Microsoft must have to survive, and billions of dollars. Moto has more engineers who actually invent things than Microsoft has lawyers who patent obvious implementations of others' inventions, but Moto has hundreds of lawyers too. Moto has honest partners who need them to continue to invent things, notably the US Department of Defense and NASA. Microsoft might as well sue Intel for all the good this will do them.

So yeah, it's a troll in that the lawsuit is a direct statement that is intended not to convice the direct counterparty, but in the hope of eliciting a response from the audience - much like a trolling lure isn't to feed a specific fish. It's a simulation of bait to catch all of the fish that might bite. Microsoft's not going to like the response. They've got a great white shark on and they're going to need a bigger boat. But fine, that's part of the game. It's scary only in the implication that Microsoft would dare to do such a thing for short term gains when it's obviously a suicidal move in the longer term. I want to see this play out, but it will be fifteen years before we really know what happened here.

Regrettably when Microsoft agrees to settle the issue we're not going to know how much they paid for this misstep because that's not how such things are done. The settlement is always secret, and Moto has too much class to rub their nose in it.

The thing is, repairing this relationship is going to cost more than money and it won't be over when the settlement is made. The executives may come to a legal settlement, but the people who actually make stuff at Moto are now energized with the idea that Microsoft just called them a bunch of thieving bastards. I wouldn't want to be on the receiving end of that energy. Those guys know stuff. Deep stuff. They know how to invent things, and I think the things that are hurtful to Microsoft will be on their minds for many years no matter what the folks in suits do.

Re:Damn hippies... (1)

drdrgivemethenews (1525877) | about 4 years ago | (#33769558)

Like most legal departments of successful large corporations, the legal department of Microsoft does what is in its own interests more reliably than it does what is in the best interests of its corporate master. When there is money to be made from trolling, it will troll unless swatted down by the corporate overlords. Who are often too busy to notice, because they're making about 1,000 times as much money selling products as their legal department ever could make from trolling. We're talking Microsoft here: a product (legal trolling) that doesn't gross a billion a year is almost beneath notice.

Re:Damn hippies... (1)

Bert64 (520050) | about 4 years ago | (#33769206)

Selling software is the easy money, support contracts are relatively hard work in comparison.

With software you can produce more copies extremely easy, especially if your just sending out license codes rather than physical media. You have virtually infinite scalability without increasing costs, thus you can reap massive profits. Also above a certain threshold, the development cost of software becomes covered and the ongoing costs are so trivial that its effectively a 100% profit margin.

Support contracts on the other hand require staff on hand to answer the phone and deal with the customers queries, if you have too few staff or staff who aren't sufficiently capable of providing the support the customers are paying for you will have major problems so as you get more customers you also need more staff.

Re:Damn hippies... (5, Insightful)

hairyfeet (841228) | about 4 years ago | (#33767794)

Excuse me? How is making it easier for ALL to invalidate bad patents in any way, shape, or form a bad thing? You know Linux is a kernel, not a ball club. Zealotry CAN be taken too far. I personally think RMS is too extreme but if IBM and Oracle were to suddenly back him for helping to lower the bar on getting rid of the mountains of bad patents that have been issued? I'd be cheering the man on every. step. of. the. way.

It has NOTHING to do with whether you like or dislike MSFT or ANY company for that matter, it has to do with lowering the burden of proof from "clear and convincing" which even with prior art is a VERY high hurdle, to "a preponderance of the evidence" which is roughly more than likely you are right, or 51% to 49% if you prefer. If the SCOTUS hears it and MSFT wins? MSFT don't have to write a big check. Big whoop for them. But for ALL of us it will be a BIG win as it will help make it easier to start to get rid of the garbage mound of bad patents and will most likely make trolls think twice before going to court. That is good for everybody and the Apache Foundation and the EFF knows this.

Re:Damn hippies... (1)

UnknowingFool (672806) | about 4 years ago | (#33770730)

Does anyone else think that MS doesn't have a coherent legal strategy? I mean yesterday they sued ITC for patents that they claim Android violates. The patents in that case look pretty general and weak to me. With this brief they are essentially asking for the barrier to invalidate patents to be lowered. If the appeals court agrees with them then they made it much harder on themselves with the ITC case. Opposing counsel will generate bring to the court's attention when you've made their arguments for them in another case.

My feeling is most likely MS legal doesn't have a full grasp of all the cases they have ongoing. Also sometimes they use outside counsel (especially for appeals) so the right hand doesn't know what the left is doing.

Re:Damn hippies... (2, Interesting)

sumdumass (711423) | about 4 years ago | (#33770974)

I think they had a great strategy if you look into it deep enough.

They want this patent controversy and they want news of it in the main stream press because they are selling their windows 7 version of phone operating system and one of the key selling point they are making seems to be patent suit indemnification. With McBride and SCO Group more or less gone, the don't have a puppet company to show the dangers of patent suits. So they defend this case as illegitimate to show that due diligence isn't always enough, push their own case as legitimate, and claim you can avoid it all by using windows 7 and certified Microsoft products.

Re:Damn hippies... (1)

UnknowingFool (672806) | about 4 years ago | (#33772324)

What I mean is if the appeals court rules for MS, the lawyers in the ITC case (if they are worth anything) will take the appeals ruling and use it against MS. MS can't really argue against themselves. Unless there is a settlement the ITC case will take years whereas the i4 case will spend less time since they are already in the appeals stage.

Re:Damn hippies... (1)

sumdumass (711423) | about 4 years ago | (#33778594)

Well, here is the problem. Not really a problem but... You are looking at this logically from a right and wrong perspective. Don't do that just for a minute or two. Look at is specifically from a monetary gain perspective with most logic thrown out the window.

You see, MS most certainly can argue against itself in two unrelated cases covering the same areas of sorts. It's not likely that the differences in arguments will ever cross cases until one has been decided and that's only if they aren't past the point of offering evidence (the one court will just use the ruling of the other without caring about how what was argued).

Now, here is where logic gets completely turned upside down. If MS can perceptibly make more revenue from windows 7 for phones sales because of the Fear, Uncertainty, and Disinformation, then if they would lose in either patent dispute either way the cases swing, for any reason, it's still beneficial to them. It's monetarily logical for them to throw a roman pretending to be a christian to the lions in order to pack the stadiums so to speak. What I'm getting at is, it doesn't matter if they lose both cases for any reason. The big money will be somewhere else which is most likely why they are dragging both cases out- it exemplifies their indemnification as a value greater then the costs of using windows 7 for the phone over a free and open platform or even a cheaper pay platform. the patent case is more or less the bread and circuses while the real action is going on inside the emperors hidden life.

Sorry to use Roman analogies to explain that. It's just that I first learned of the art of willful deception or the attempt to hide the real issues with the examples of bread and circuses and thought it might translate this quite nicely. It's really a slight of hand trick, they are saying look here, why something else is happening, all along they are trying to charge a fee to see the show. Or at least that's how I see it.

Re:Damn hippies... (1)

UnknowingFool (672806) | about 4 years ago | (#33783690)

You see, MS most certainly can argue against itself in two unrelated cases covering the same areas of sorts. It's not likely that the differences in arguments will ever cross cases until one has been decided and that's only if they aren't past the point of offering evidence (the one court will just use the ruling of the other without caring about how what was argued)

Normally when it is brought up in court, the party that has argued against itself will clarify why each case is different and why their arguments make sense in each case. But unfortunately for MS, the appeals case is arguing for a broad lowering of standards of patents. The specific ITC case falls under the broad appeal. In recent history, IBM and Novell routinely notified the respective courts when SCO argued against itself in different ongoing cases.

Now, here is where logic gets completely turned upside down. If MS can perceptibly make more revenue from windows 7 for phones sales because of the Fear, Uncertainty, and Disinformation, then if they would lose in either patent dispute either way the cases swing, for any reason, it's still beneficial to them. It's monetarily logical for them to throw a roman pretending to be a christian to the lions in order to pack the stadiums so to speak. What I'm getting at is, it doesn't matter if they lose both cases for any reason. The big money will be somewhere else which is most likely why they are dragging both cases out- it exemplifies their indemnification as a value greater then the costs of using windows 7 for the phone over a free and open platform or even a cheaper pay platform. the patent case is more or less the bread and circuses while the real action is going on inside the emperors hidden life.

If I were to win as Motorola, I would not only ask for lawyers fees (which could get big) as well as punitive damages. I would try to prove that MS knew they didn't have a case especially if it were to argue against itself early on that they did it for FUD. Judges generally do not like it when their courts are being used for things other than the pursuit of justice.

Re:Damn hippies... (1)

sumdumass (711423) | about 4 years ago | (#33803138)

If I were to win as Motorola, I would not only ask for lawyers fees (which could get big) as well as punitive damages. I would try to prove that MS knew they didn't have a case especially if it were to argue against itself early on that they did it for FUD. Judges generally do not like it when their courts are being used for things other than the pursuit of justice.

I agree. But I also think that some sort of outside suit could be taken against MS is this turns out to be true. It would seem to me that they could look for lost sales and other damages that might have occurred because of this as well as some potential causes of action from google or other organizations that offers phone software.

Re:Damn hippies... (1)

HermMunster (972336) | about 4 years ago | (#33776178)

What you and everyone else forgets (including the EFF) is that this "preponderance of the evidence" will work both ways. In the end the people with the money will win the patent suits because they can bring more and bigger guns to the table. At least with "clear and convincing" the little guy has a chance--to defend against a criminal monopoly such as Microsoft that has a habit (shown over the past 20 years) that they'll steal anyone else's work and dare you to defend yourself in court.

Re:Damn hippies... (1)

HermMunster (972336) | about 4 years ago | (#33776192)

It is not. But when suits fly to and from those proposing this sort of change then certainly they have ideas beyond what you think the benefit is. This will make it easier for Microsoft to sue other, believe it or not, because they have more money. In cases where preponderance of evidence comes into play it is historically the money side that wins.

Careful what you (the metaphorical) wish for... (1)

Penguinisto (415985) | about 4 years ago | (#33767800)

Taking something to the US Supreme Court is a big-assed wager.

Sometimes, you get what you want - say, software patents being invalidated (or at least weakened to the point of near-uselessness). This would be a very good thing.

However - any outcome other than what you desired will either make it im-fucking-possible to change later. For instance, a bad outcome would be for software patents to not only get validated, but strengthened to the point where any patent holder (no matter how specious the patent), can promptly send any company they want straight into fiscal hell. Like today, only 10x as worse.

Of course, like the roulette players who only bet on red or black, but the ball lands on "00"? Sometimes, the result is something totally unexpected, confusing as hell, angers both sides, and only ends up making things more complex and ugly all at once.

Seriously? I'd like to see software patents die and all, but there had better be one HELL of a strong case, aligned just right in circumstance, before anyone starts shoving for a USSC hearing on the matter. Thsi case, in which both parties have every interest towards seeing software patents stay alive and healthy? This case damned sure ain't it. The EFF would've been better served leaving Microsoft to choke on its own blood.

Re:Careful what you (the metaphorical) wish for... (0)

Anonymous Coward | about 4 years ago | (#33767972)

Seriously? I'd like to see software patents die and all, but there had better be one HELL of a strong case, aligned just right in circumstance, before anyone starts shoving for a USSC hearing on the matter. Thsi case, in which both parties have every interest towards seeing software patents stay alive and healthy? This case damned sure ain't it. The EFF would've been better served leaving Microsoft to choke on its own blood.

Who do you think is better at judging the strength of this case, you or the lawyers at EFF?

Re:Careful what you (the metaphorical) wish for... (5, Insightful)

Grond (15515) | about 4 years ago | (#33768128)

However - any outcome other than what you desired will either make it im-fucking-possible to change later. For instance, a bad outcome would be for software patents to not only get validated, but strengthened to the point where any patent holder (no matter how specious the patent), can promptly send any company they want straight into fiscal hell. Like today, only 10x as worse.

I don't think you understand the procedural posture of this case. This is a (potential) Supreme Court case, which means the case will be about the narrow issue framed by the appeal and grant of certiorari. It is not about software patents per se. It's about the standard of proof of invalidity in all patent cases, specifically the standard for prior art not considered by the Patent Office.

Here, Microsoft is asking for the standard to be lowered. i4i will likely ask for the Court to maintain the status quo. In all likelihood, if the Court wants to maintain the status quo then it will simply deny certiorari and let the lower court decision stand. There is almost no chance that the Court will raise the standard beyond the existing clear and convincing standard. This is for several reasons, not least because there isn't really any standard above C&C but below the criminal standard of beyond a reasonable doubt, and it's highly unlikely the Court would create a new standard just for patent validity.

There's really no downside to supporting Microsoft here if you want patents to be easier to invalidate, especially because you know Microsoft will put substantial resources behind making sure it puts its best foot forward. For one thing, if it loses it will have to pay a $240 million judgment. That's a pretty big incentive.

Re:Careful what you (the metaphorical) wish for... (1)

guyminuslife (1349809) | about 4 years ago | (#33768686)

An amicus brief isn't simply a piece of paper that says "we think these guys should win." It's an exposition of a party's legal reasoning. In this instance, the EFF certainly has an interest in the precedent set by this case---assuming cert is granted. The justices read those things. So assuming they take the case, it's important that the EFF's position be articulated.

As another poster said, there's virtually no chance that SCOTUS will take the position that the standard of proof should be raised. Even if they do rule against Microsoft, they will likely do so on such narrow grounds that future cases will have some wiggle room. What I can say positively about SCOTUS is that I think that pretty much every justice on the Court---even the ones I disagree with---takes the time to sincerely wonder, "What could possibly go wrong?" about their decision before it's handed down.

Microsoft and EFF together? (2, Funny)

Dexter Herbivore (1322345) | about 4 years ago | (#33767626)

Human sacrifice, dogs and cats laying together, mass hysteria...

It's the end of days!

Re:Microsoft and EFF together? (-1, Troll)

Anonymous Coward | about 4 years ago | (#33767704)

Only for small minded cunts who value politics above technology.

Re:Microsoft and EFF together? (0)

Anonymous Coward | about 4 years ago | (#33768090)

Only for small minded pecks who value bureaucratic regulations above paranormal containment grids.

Fix'd

The enemy of my enemy... (1)

crashandburn66 (1290292) | about 4 years ago | (#33767670)

...is my friend.

No. Rule 29: (3, Insightful)

Inf0phreak (627499) | about 4 years ago | (#33767734)

Rule 29 [schlockmercenary.com] : The enemy of my enemy is my enemy's enemy. No more. No less.

Re:No. Rule 29: (0)

Anonymous Coward | about 4 years ago | (#33768878)

The enemy of my enemy is a useful thing.

Re:The enemy of my enemy... (5, Funny)

$RANDOMLUSER (804576) | about 4 years ago | (#33767980)

If the enemy of my enemy is Microsoft, maybe I was too harsh in the first place.

Submitter's implication is unsupported (2, Insightful)

93 Escort Wagon (326346) | about 4 years ago | (#33767766)

Microsoft has decided the strategy for its Supreme Court appeal will be to argue that the standards of proof in patent cases are too high — this from a company that has thousands of patents it regularly defends.

Msmoriarty makes a logical leap here without providing any supporting evidence. Of course Microsoft defends its patents - given the current legal landscape, any business that doesn't do so is just plain stupid. It doesn't matter what they think the law should be; they have to behave according to how the law currently exists.

The general principle is somewhat similar to how Apple sold DRM-encumbered music files for a while, even while publicly advocating for the end of DRM. Of course in that case it wasn't a matter of law; it was a matter of the existing policies at the companies who held the rights to the music. Apple did what it had to do from a business perspective even though it wanted the circumstances changed.

Note that this doesn't prove that Microsoft believes patent law needs to be changed, either. We don't really know either way, and for msmoriarty to assume otherwise is without basis. Unless Microsoft makes a public declaration one way or the other, this simply amounts to a legal tactic - nothing more.

Re:Submitter's implication is unsupported (1)

Darkness404 (1287218) | about 4 years ago | (#33767790)

While I agree with what you are saying about Microsoft, the idea that Apple was "forced" to include DRM was laughable. If Apple refused to include DRM-ed songs in iTunes what would the record companies do? Few people care what record companies record their artists so they aren't going to be going to 20 different sites to download music, there were no real competitors to iTunes at that time so either they would abide by the iTunes policies or have their music be pirated left and right.

Re:Submitter's implication is unsupported (2, Insightful)

fyrewulff (702920) | about 4 years ago | (#33767836)

While I agree with what you are saying about Microsoft, the idea that Apple was "forced" to include DRM was laughable. If Apple refused to include DRM-ed songs in iTunes what would the record companies do?

Not license their music to Apple?

Re:Submitter's implication is unsupported (1)

Darkness404 (1287218) | about 4 years ago | (#33767932)

Which would end up in causing massive piracy as people having music players of higher storage space can put more and more songs on them.

Re:Submitter's implication is unsupported (1)

suomynonAyletamitlU (1618513) | about 4 years ago | (#33767842)

If Apple refused to include DRM-ed songs in iTunes what would the record companies do?

My understanding, both at the time and now, is that they didn't have to do anything--they could simply not permit iTunes to sell their music. Because copyright law is already in place, iTunes could not, and cannot, sell anything that they don't have rights to.

In other words, Apple had to come to the record companies; the record companies don't have to go out of their way to do anything. All they had to do was say "no".

Re:Submitter's implication is unsupported (1)

Darkness404 (1287218) | about 4 years ago | (#33767872)

Yeah, and face massive amounts of piracy as people filled up their music devices. The point is, if Apple not pursued record companies and settled with DRM'd music, the record companies would be the ones to suffer, not Apple.

Re:Submitter's implication is unsupported (2, Insightful)

Your.Master (1088569) | about 4 years ago | (#33768048)

The first online music store that agreed to sell DRM music would benefit, iTunes would never have taken off, and the record companies would be fine. Apple was able to turn the tables on the record companies when iTunes became a huge and dominant market for them.

Re:Submitter's implication is unsupported (0)

Anonymous Coward | about 4 years ago | (#33768284)

That doesn't make sense. There are plenty of legal ways to buy music besides iTunes.

If somebody's going to "pirate" music, they're going to do it whether iTunes uses DRM or not.

Re:Submitter's implication is unsupported (1)

Kalriath (849904) | about 4 years ago | (#33779010)

Funnily enough, music stores existed before iTunes. What would have happened is people would have continued to use their existing music stores, and iTunes never would have got off the ground. What really happened is that iPods shovelled iTunes usage, to the point that it reached critical mass and attained the weight necessary to force what Apple wanted. It never would have reached critical mass without the record labels agreeing to it.

Re:Submitter's implication is unsupported (3, Insightful)

morgan_greywolf (835522) | about 4 years ago | (#33768234)

Few people care what record companies record their artists so they aren't going to be going to 20 different sites to download music, there were no real competitors to iTunes at that time so either they would abide by the iTunes policies or have their music be pirated left and right.

Look over your logic a little more carefully. iTunes had no real competitors because record companies refused to license the vast majority of their catalogs to anyone, let alone Apple.

When Apple started iTunes, they needed to convince the record companies that their music wouldn't just be pirated all over the Web. It's not like Apple didn't actually know that it would take about 5 minutes for someone to crack their FairPlay DRM, but they needed to somehow convince the record companies to release their catalogs to them. The DRM gave them a way to do that.

Re:Submitter's implication is unsupported (1)

91degrees (207121) | about 4 years ago | (#33772154)

The record companies were not willing to provide music in an easily copied format at the time. They were incredibly stuck in the old ways of doing things and thought they could control piracy. Okay - the presence or absence of DRM made no difference. There was no need to crack Fairplay since it was simply easier to rip from CD.

Still, you are right. Steve Jobs was a very canny businessman who realised that by providing the DRM, the record companies would licence to him, giving him a period of exclusivity while everyone else rushes to implement some sort of DRM, and providing lock-in for iPod owners.

Re:Submitter's implication is unsupported (4, Insightful)

Grond (15515) | about 4 years ago | (#33767912)

Note that this doesn't prove that Microsoft believes patent law needs to be changed, either. We don't really know either way, and for msmoriarty to assume otherwise is without basis. Unless Microsoft makes a public declaration one way or the other, this simply amounts to a legal tactic - nothing more.

An appeal to the Supreme Court is a public declaration. What's more, this has been Microsoft's position for years. For example, it tried the same approach when it was sued by z4 Technologies over anti-piracy measures in XP and Office (that case eventually settled).

Dismissing this as a 'legal tactic' is silly. Microsoft is asking for a nationally binding precedent from the highest court in the country, a court that does not like to overturn itself. If the Supreme Court indeed lowers the standard of proof, then that will likely be the law for decades (barring unlikely congressional action). In fact, making this claim in a Supreme Court proceeding is actually more indicative of Microsoft's beliefs than a press release because, unlike a press release, a Supreme Court ruling would actually change the law. There are no take-backs if Microsoft changes its mind.

Re:Submitter's implication is unsupported (3, Insightful)

shutdown -p now (807394) | about 4 years ago | (#33768236)

Msmoriarty makes a logical leap here without providing any supporting evidence. Of course Microsoft defends its patents - given the current legal landscape, any business that doesn't do so is just plain stupid. It doesn't matter what they think the law should be; they have to behave according to how the law currently exists.

I think you hit the nail on the head here. It may well be that calculations have definitely shown that Microsoft (and then I would also expect this to apply to other major players) would be better off, financially, with more lax patent rules, so that point gets argued. However, in the meantime, the same "maximize profit" rule is applied in the existing circumstances, leading to patent lawsuits. It's only a self-contradictory position if you believe that everyone's stance on software patents is guided by ideology. If it's strictly about money, it makes perfect sense.

Re:Submitter's implication is unsupported (1, Interesting)

Anonymous Coward | about 4 years ago | (#33768320)

Microsoft has a problem. Empire building. Head count is very important in determining your importance at Microsoft. If department A ships Microsoft Bob four years late but has 500 people, while department B makes a game changing new business application on time with 50 people, the guy running department A is doing "better".

Suppose you're the head lawyer at Microsoft. You cannot achieve even minimal success by creating stuff, so your only way to "improve" is through growing your empire - hiring more lawyers and finding stuff for them to do. Sue some little embedded company. Write and rewrite the T&Cs for some web site Microsoft will abandon a few weeks later. Anything to keep the workload high and justify more hiring, more headcount, more importance.

Hence e.g. Mini microsoft. People inside Microsoft who want it to succeed think it should be firing, not hiring.

Re:Submitter's implication is unsupported (1)

hedwards (940851) | about 4 years ago | (#33769938)

They weren't forced to do it in the way that you suggest. They had to include it in order to sell the songs, yes, but they weren't really advocating particularly strongly for the removal of DRM. It wasn't until they'd locked up their monopoly position over the market that they started to push for the removal of DRM.

Careful with that brief, Eugene (3, Funny)

$RANDOMLUSER (804576) | about 4 years ago | (#33767940)

So is the EFF filing an amicus curiae or an amicus diabolus brief?

Re:Careful with that brief, Eugene (1, Informative)

Anonymous Coward | about 4 years ago | (#33767970)

So is the EFF filing an amicus curiae or an amicus diabolus brief?

That would be amicus diaboli.

/Latin & legal pedant

Re:Careful with that brief, Eugene (1)

$RANDOMLUSER (804576) | about 4 years ago | (#33768014)

Damn. I should have gone with amicus luciferi as I first intended.

Re:Careful with that brief, Eugene (1, Informative)

Anonymous Coward | about 4 years ago | (#33768546)

Friend of Venus doesn't really have the same ring to it.

Lucifer doesn't mean devil, it means Venus (the planet) when seen in the morning. It literally means "light bringer". The greeks knew it as phosphoros.

The only place you'll find it in a bible (unless you have one of the lame post-KJV translations) is the book of Isaiah. Babylonian rulers (and Egyptian, and Sumerian, and...) tended to think of themselves as gods. So one that had held the jews captive in the old testament liked to refer to himself as the morning star, and the jews were mocking him for it as they left.

How art thou fallen from heaven, O Lucifer, son of the morning! How art thou cut down to the ground, which didst weaken the nations! [biblegateway.com]

Re:Careful with that brief, Eugene (3, Insightful)

Antique Geekmeister (740220) | about 4 years ago | (#33769772)

Well, they're not playing devil's advocate. (http://en.wikipedia.org/wiki/Devil%27s_advocate).

The "devil's advocate" is a fascinating role: when Roman Catholics try to have someone declared a saint, it was the devil's advocate's role to oppose the practice. The office was abolished last century, and replaced with the "promoter of justice". It was an _embarassing_ job: discrediting miracles and casting doubts on the beliefs of devout people about their favorite potential saint is thankless work.

The results are predictable. Much like the patent office failing to challenge software patents, unless the flaws in the potential saint's proposal are obvious and profound, sainthood is now much more easily granted. The result has been an explosion in the number of new saints, from fewer than 100 in the first part of the 20th century to over 500 in the latter part.

Unfortunately, sort of genuinely skeptical agent is vital to certifying only valid saints, or patents. As Microsoft and EFF and the Apache Foundation are claiming, it's clearly not happening at the patent office. Perhaps the patent office could hire some Jesuits? They tended to provide devil's advocates, before the office was discarded, and people with experience being so "jesuitical" might do wonderful work scraping the legal clutter off of a patent application to expose, and discredit, invalid patents.

Wow - how times have changed (1)

lavagolemking (1352431) | about 4 years ago | (#33768298)

For once I hope Microsoft wins a legal battle, and that's the last thing I would ever expect to feel. I must be going crazy or something. Must be spending too much time on these software projects.

Fun times... (1)

zkiwi34 (974563) | about 4 years ago | (#33768478)

Although if I were Microsoft at this moment, I'd be paying the lawyers overtime to find out why EFF thinks overturning this patent ruling is a good thing. Last I heard EFF wasn't too big on patents and they're not altogether retarded, so... anyway, if I were a Microsoft lawyer I'd be worried enough to make sure I knew where all the chairs were...

Re:Fun times... (4, Informative)

tinkerghost (944862) | about 4 years ago | (#33768736)

Although if I were Microsoft at this moment, I'd be paying the lawyers overtime to find out why EFF thinks overturning this patent ruling is a good thing.

Why pay the lawyers when you can just read the brief & they tell you? EFF thinks overturning the ruling because the ruling is based on "Clear and Convincing" evidence. In other words, a patent is given the same weight as a previous legal ruling - even though nobody is allowed to argue against the patent before it's issued.

First off you don't come in on an equal footing - patents are assumed to be valid. Next, the level of proof required to set aside a patent is higher than in any other form of IP case. The only other time I can find "Clear and Convincing" as the standard is when the court is stripping someone of their parental rights.

Between the 2 of them, it makes it almost impossible to invalidate a patent. When the standard was set, the Patent office was:

  • receiving 1/10th the number of patent application
  • Reviewing each patent by someone knowledgeable in the art.
  • reviewing patents involving physical products(items) & processes(chemical processes) not vague fragments of code & general abstraction (business processes)

At that time, the standard made sense. Under the current process, where an intern with a chemistry degree is approving software patents, it no longer does. Currently, a patent clerk has less than 4 hours to determine if a patent application should be approved or not. Examine some of these patents -- many are upwards of 200 pages of legalese. Nobody can accurately determine the validity of a patent that complex in a few hours - and yet they are given the presumption of validity going in.

Re:Fun times... (4, Interesting)

Dachannien (617929) | about 4 years ago | (#33769392)

Currently, a patent clerk has less than 4 hours to determine if a patent application should be approved or not.

It depends on how you divide up the allotted hours, but 4 hours might be true only for the simplest of arts (generally mechanical arts in very mature fields).

Examiners get a certain number of hours for (more or less) two reviews of an application. The first review usually results in a non-final rejection, and the second results in either an allowance (resulting in an issued patent), a final rejection (if the examiner did a good job on the non-final rejection), an abandonment (if the applicant fails to respond within the time limit), or an appeal (if the applicant appeals to the BPAI, or Board of Patent Appeals and Interferences, the examiner must respond to the applicant's appeal brief). Each of these is worth a certain amount of credit to the examiner, called "counts", and examiners are supposed to get a certain quota of counts depending on their pay grade, the art they work in, and the number of hours they work.

These two reviews (non-final and final, along with the associated paperwork involved in disposal of the case) are essentially allotted a certain number of hours total. For examiners in simpler mechanical arts at higher pay grades, this number could be around 10, but for new examiners in complicated electrical arts, it could be 40 or more. That's not to say that this is enough time to review these cases, and many newer examiners work substantial amounts of voluntary overtime in order to meet their production requirements.

On a side note, all patent examiners must have a degree in an engineering field. Most of the training for the job is associated with the legal aspects of examining patents, but there is some technical training as well (usually higher-level general stuff to familiarize examiners with certain terms and concepts in the art). Also, examiners are assigned to examine a particular art, and they usually don't switch around much, so over time, they become very knowledgeable about their art. Some arts have a tough time with this because high turnover has kept much of the workforce green, but other arts have examiners with 10-20 years of experience examining patents.

The first thing that came to my mind was the KKK (3, Insightful)

Oriumpor (446718) | about 4 years ago | (#33768798)

Being defended by the ACLU. Sure, it's even more involvement from two completely disparate allies but it struck me as truthful. Sometimes you end up making alliances with your next to worst enemy, so you can make the world more free for us all.

Re:The first thing that came to my mind was the KK (2, Insightful)

Ernst Hot (1341593) | about 4 years ago | (#33768996)

Indeed, I also believe it is about integrity. Defending your principles though it benefits your enemies, is in my opinion highly admirable.

Re:The first thing that came to my mind was the KK (1)

dhavleak (912889) | about 4 years ago | (#33769090)

Not just on the part of the EFF and Apache Foundation -- the same thing can be said for Microsoft as well. They must know that if their motion is successful, it helps their competitors just as much as it helps them -- but they have decided to proceed regardless.

Re:The first thing that came to my mind was the KK (1)

Vegeta99 (219501) | about 4 years ago | (#33769250)

Amen, man. I'm a first year law student. NOBODY says they want to be a criminal defense attorney.

Every time we hear a speaker talking about a criminal case, they say the same thing: "Well, I didn't want to be a criminal defense attorney, but then..."

Kinda funny how jaded class can make a person, even only 7 weeks in.

Re:The first thing that came to my mind was the KK (1)

drinkypoo (153816) | about 4 years ago | (#33769726)

Defending your principles though it benefits your enemies, is in my opinion highly admirable.

If you don't defend your principles unto death (or similar) they aren't principles, they're just things you think are good ideas.

Duels? (0)

Anonymous Coward | about 4 years ago | (#33770316)

Duels were fought over matters of principle. Think about it, people were willing to risk death over what they believed was right!

Why is this wrong? (1)

Arancaytar (966377) | about 4 years ago | (#33769374)

The Free Software community is not the Anti-Microsoft club; it is the Anti-Stupid-Restrictions club. If Microsoft is fighting a stupid patent, they deserve support, no matter how deliciously karmic it is.

The question here... (1)

freeasinrealale (928218) | about 4 years ago | (#33770256)

...is this (lowering the bar) really the goal, ie lowering the bar or actually getting rid of software patents? To me, 'lowering the bar' says that software patents are valid, because we have 'agreement' as to what constitutes a line in the sand for good/bad patents. Somethings rotten in Denmark (& elsewhere). I think lowering the bar IS what M$ is really after.

Re:The question here... (1)

Lonewolf666 (259450) | about 4 years ago | (#33770646)

Lowering the bar is all this appeal to the Supreme Court is about. it would be unrealistic to expect more.

Getting rid of software patents (or all patents) is a matter for Congress. It might also require the USA to withdraw from some international agreements.

So basically... (1)

_0rm_ (1638559) | about 4 years ago | (#33770760)

MOMMY! The game is too hard for me to win! Make it easier pl0x!!

Diff. between i4i case and other patent trolls (1, Insightful)

Anonymous Coward | about 4 years ago | (#33770826)

There are some differences with this case compared to a basic patent troll case.

First off, i4i actually had a product that was shipping, though in a targeted market. A patent troll is an organization that collects patents for the sole purpose of suing other organizations. The lawsuits themselves become the revenue model.

Second off, i4i tried to work with MS for a period of time prior to MS breaking off communications with i4i and building their own system. This makes this whole thing a little more than a basic patent violation, but it moves into a misappropriation of trade secrets; and who knows how much actual code was misappropriated.

The original purpose of the patent system was to protect the small inventor from having their inventions from being exploited by large companies that have the finances to saturate the market and lock that inventor out of being able to benefit from the invention. In a lot of ways, this has been usurped by large companies cross licensing to each other and largely keeping themselves out of any significant patent disputes, as well as using the litigation system as a way to bankrupt inventors that don't have the capital resources forcing them to often just give up their patents for almost nothing. (NOTE: this comment is regardless of what a person thinks of software patents specifically, it is just the intent of the patent system in general).

What MS did was extremely unethical, not because they violated a patent, but they used a previous business relationship to do so. That on its own deserves severe penalties.

PS. As for my personal feeling about software patents, I am not against them per se, however because of the nature of the software industry, I agree that the system has gotten out of hand with the majority of patents being issued that should not have been issued. Maybe a possible suggestion to fixing the situation would be to have variable length patents. The 17 year patent was probably applicable 200 years ago, however today it is not all that useful for software patents where the cost of entry into a market isn't all that high. Something like a mechanical patent would remain at 17 years, products that have a huge cost/time of entry such as pharma (which may take 15 to 20 years just to get onto the market) could be longer, and software might get say a 3 to 5 years of protection. With that shorter time period, the inventing company gets the lead time to market the product, but not so long that it becomes irrelevant long before the patent expires (GIF was on its way out before the patent expired for example). Another issue with the GIF patent specifically is that the LZW patent was a component of a larger patent. A patent should be treated as a unit, and not be allowed to be broken down.

odd (0)

Anonymous Coward | about 4 years ago | (#33863382)

I never expected to see a day when the EFF would argue in court on Microsoft's behalf. Patent litigation [fastcompany.com] certainly creates strange bedfellows. I'm not sure the Court will go for it, though. The entire patent system is weighted in favor of encouraging the issuance of patents -- which the "clear and convincing" standard is meant to facilitate, and which the EFF obviously wants to debilitate by replacing it with a "preponderance" standard. Odds are that, if Microsoft did win this round, it would later regret it, as soon as it became a plaintiff in some other big-ticket patent enforcement suit.

Check for New Comments
Slashdot Login

Need an Account?

Forgot your password?