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US Gov't Sides Against Microsoft In i4i Patent Case

Soulskill posted more than 3 years ago | from the should-have-lobbied-harder dept.

Microsoft 193

Julie188 writes "In the ongoing patent infringement case between i4i and Microsoft, i4i has won a powerful ally: the US government itself. The US solicitor general, which represents the federal government in the Supreme Court, on Friday filed an amicus brief in support of i4i, saying that the US Patent and Trademark Office should not be second-guessed by a jury. i4i, which won a $290 million patent judgment against Microsoft, has now accrued 22 amicus briefs in its corner, representing more than 100 companies, organizations and individuals, including venture capitalists, individuals from the military and now, the government. Meanwhile, Microsoft has so far lined up 20 amicus briefs, representing about 60 companies and individuals, including Google, Apple, Cisco, Intel, Red Hat, the Electronic Frontier Foundation and 37 law and economics professors. At issue is how much evidence is required to invalidate a patent."

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The most respectable party in those briefs for me (4, Insightful)

unity100 (970058) | more than 3 years ago | (#35566876)

is Electronic Frontier Foundation. Actually, i think u.s. patent office should not be second guessing EFF, since their competence and understanding of these issues far surpass patent offices', leave aside any corporations'.

Re:The most respectable party in those briefs for (0, Troll)

blair1q (305137) | more than 3 years ago | (#35566934)

EFF is a private organization. Right now you respect them. By morning they could be a wholly-owned subsidiary of a holding company owned by Microsoft. And I'm not saying which morning.

Re:The most respectable party in those briefs for (4, Funny)

Curate (783077) | more than 3 years ago | (#35566960)

Excuse me, they have "Foundation" in their name. They are damn well respectable.

Re:The most respectable party in those briefs for (4, Interesting)

Curunir_wolf (588405) | more than 3 years ago | (#35567118)

EFF is a private organization. Right now you respect them. By morning they could be a wholly-owned subsidiary of a holding company owned by Microsoft. And I'm not saying which morning.

You were probably trying to be funny, but the EFF is not a private organization the way you are thinking. You cannot just buy out a 501(c)(3) and start controlling it. It's run by a board of directors and a set of bylaws that must be followed. Unless the directors end up disillusioned with the organization or its mission, there's really not much an outside party can do to influence it.

Re:The most respectable party in those briefs for (2)

dotfile (536191) | more than 3 years ago | (#35567220)

In theory, you're right. In practice, not so much. Lots of money can (and often does) fundamentally alter the practices of many non-profits. Sure, they're nominally non-profit, with bylaws and directors. All of which/whom can be altered or replaced. If pallet loads of cash start flowing from the general direction of a Borg cube, enabling the construction of fancy new offices and much better compensation for the officers... well, you can see how that could happen. Many a nonprofit has been subverted by lots of money and infiltration by unscrupulous individuals.

Re:The most respectable party in those briefs for (2)

Curunir_wolf (588405) | more than 3 years ago | (#35567550)

Meh. You could be right in theory. Certainly there have been some neophyte political organizations set up by well-meaning but naive activists that were able to get subverted by establishment types because they were not careful in structuring their by-laws and board.

None of that really applies to an established organization like the EFF. They are pretty well protected and have a source of revenue that would be difficult to overcome. If you know of any similar organizations of the type that were able to be subverted by the interests they were opposing I would love to hear about it - I actually doubt you can come up with any.

Re:The most respectable party in those briefs for (1)

Anonymous Coward | more than 3 years ago | (#35568928)

If you know of any similar organizations of the type that were able to be subverted by the interests they were opposing I would love to hear about it

ISO?

Re:The most respectable party in those briefs for (1)

Hognoxious (631665) | more than 3 years ago | (#35569366)

They are pretty well protected and have a source of revenue that would be difficult to overcome.

Any source of revenue can be overcome by a sufficiently larger source of revenue.

-- T. Jefferson

Re:The most respectable party in those briefs for (4, Insightful)

PopeRatzo (965947) | more than 3 years ago | (#35567664)

Lots of money can (and often does) fundamentally alter the practices of many non-profits.

Tell you what: it won't be hard to figure it out if the EFF ever sells out. But until then, until we see one single shred of evidence that the EFF is anything but what we all know them to be, which is a highly-reputable organization dedicated to keeping technology and culture as free as possible (free in more than one sense) who has looked out for the best interests of every single one of us here on Slashdot (except maybe a few of those people who have just registered here as part of New Media Strategies' (and other companies of that type) ongoing attack on online communities) - until we get the merest hint that they're not doing a great job and are not exactly what they say they are, then we should assume that any comment here trying to spread FUD about the EFF is probably part of one of those corporate astroturfing outfits (like New Media Strategies and Reputation Defender and others like them).

I'm glad I read this. It's a reminder to send a little chunk of my income tax refund to the EFF for the great work that they continue to do.

Re:The most respectable party in those briefs for (1)

Gadget_Guy (627405) | more than 3 years ago | (#35567772)

Tell you what: it won't be hard to figure it out if the EFF ever sells out.

Absolutely! It is crazy (dare I say paranoid) to pre-emptively denigrate an organisation because one day that might turn bad. Judge them by their actions today.

However, I can't completely agree with your next sentence because 1) it is 150 words long, and 2) complaining about FUD by accusing people of being astroturfers or shills is itself FUD. This argument is known as "playing the man, not the ball". Just because somebody has a different opinion than you does not mean that they are being paid to argue against you. It is something that we are seeing around here more and more these days.

Re:The most respectable party in those briefs for (5, Interesting)

PopeRatzo (965947) | more than 3 years ago | (#35567984)

Just because somebody has a different opinion than you does not mean that they are being paid to argue against you. It is something that we are seeing around here more and more these days.

Ah, but if you look at the new breed of astroturfer, it's not about "opinion", it's about misinformation. The comment to which I was responding did not just say "I don't like the EFF" which is an opinion, it was that "the EFF spreads so much FUD" which is simply a lie. You can say a lot of things about the EFF, but "spreading FUD" is not one of them.

And you say "It is something we are seeing around here more and more these days". But besides "playing the man not the ball" how would you suggest addressing it? We are seeing entire stories and comments threads made unreadable by a first section of over 100 comments alternating anonymous cowards cutting and pasting and newly-minted UIDs dropping in to keep the thread expanded. And there is a marked similarity to the stories that attact these trollbombs. If you go to other sites where technology is discussed, you will see the same attacks in the same manner often on the same stories. I used to believe as you do, that claiming "astroturf" was just a way to marginalize disagreement. But as the companies that are engaged in this organized astroturfing grow, they are hiring people who are less skilled (who are probably making minimum wage) and they're starting to get a little obvious about it.

I understand what you're saying, but I'm getting a little worried that by the time we come up with a response, it's going to be way too late.

Re:The most respectable party in those briefs for (1)

Anonymous Coward | more than 3 years ago | (#35569034)

Just because somebody has a different opinion than you does not mean that they are being paid to argue against you. It is something that we are seeing around here more and more these days.

This phrase is also something I've seen a lot lately, and not just here - it's across all of the tech sites I read.

You should get your Reputation Management strategist to write you a new script...

Re:The most respectable party in those briefs for (1)

calmofthestorm (1344385) | more than 3 years ago | (#35567478)

Didn't the Church of Scientology do something like this to the Cult Awareness Network?

Re:The most respectable party in those briefs for (-1)

Anonymous Coward | more than 3 years ago | (#35567342)

Yeah, except no one can spread FUD like the EFF, not even Microsoft. I will never give a dime to them.

Re:The most respectable party in those briefs for (5, Insightful)

PopeRatzo (965947) | more than 3 years ago | (#35567698)

Hey look! It's one a them New Media Strategies types. He's here to make it seem like EFF is the one doing something wrong.

Now I wonder, who would benefit from spreading FUD about the Electronic Freedom Foundation? Anybody care to start a little list?

I think it's time that we got real familiar with New Media Strategies and Reputation Defender and other online astroturfing units. Because if we don't figure out a way to thwart their dirty business, which is basically a much uglier and much more insidious version of spam, except with the intent to harm, the internet is going to become completely worthless as a place to get even the most basic information. I mean, we know not to believe everything we read at Wikipedia, but this is raising the stakes to a whole new level of bullshit. Everyone who runs a social media site has a responsibility to figure out how to keep these new mil-spec astroturfers out of the pool if they hope to exist into the future. And every one of us has a responsibility to out and thwart these new blastroturfers because there is value in the variety of online communities, including Slashdot. If you didn't think so, you wouldn't be reading this.

Re:The most respectable party in those briefs for (2)

vajrabum (688509) | more than 3 years ago | (#35567738)

That's a great questions. I've seen a fair number of comments lately and a few topics that seem completely overrun by loud overbearing folks whose beliefs make me wonder if they're professional astroturfers.

Re:blastroturfers (2)

TaoPhoenix (980487) | more than 3 years ago | (#35569252)

Yes, it has gotten quite bad lately - almost precisely at the 2mil-uid mark here.

Slashdot tries to hold fast to the no-censor policy, so they're rather under fire.

The only system I can think of is some kind of turbo personal comment-blocker like adblock where the comment doesn't come back when you reload the page.

Re:The most respectable party in those briefs for (1)

bmo (77928) | more than 3 years ago | (#35567762)

Maureen O'Gara, is that you?

Or maybe "Kenneth Saborio?"

--
BMO

Re:The most respectable party in those briefs for (1)

Opportunist (166417) | more than 3 years ago | (#35568660)

[citation needed]

Re:The most respectable party in those briefs for (0)

Anonymous Coward | more than 3 years ago | (#35567660)

Too bad they're biased against software patent...

Re:The most respectable party in those briefs for (1)

Anthony Mouse (1927662) | more than 3 years ago | (#35568562)

"Bias against software patents" and "having an understanding of software patents" are essentially equivalent, with an exception for patent lawyers whose business it is to execute the cognitive dissonance of doing the latter while avoiding the former.

Re:The most respectable party in those briefs for (0)

Anonymous Coward | more than 3 years ago | (#35567752)

Actually, i think u.s. patent office should not be second guessing EFF, since their competence and understanding of these issues far surpass patent offices'

Not dissing the EFF here, but are you serious? The EFF is well respected, but they aren't the US Supreme Court. Just because they file a brief doesn't mean that that's the last word on the subject.

I scanned one of the briefs filed in support of Microsoft. Wow... this patent stinks, but it's no worse than thousands of others filed on a daily basis in the software business by Microsoft and the corporations that filed amicus briefs on their behalf.

This time it was Microsoft that stepped on the improvised courtroom device.

Re:The most respectable party in those briefs for (2)

WorBlux (1751716) | more than 3 years ago | (#35568048)

Actually the people in the EFF probably understand I.P. law in it's current form and it's consequences better than those nine in the supreme court. Donning a black rob doesn't make a person omnipotent. Sure what they say is THE LAW(TM) but it's not always THE RIGHT THING(TM).

A FIGHT IS A BREWIN !! (-1)

Anonymous Coward | more than 3 years ago | (#35566914)

100 on the revenuers !!

Why Not? (3, Insightful)

WrongSizeGlass (838941) | more than 3 years ago | (#35566940)

saying that the U.S. Patent and Trademark Office should not be second-guessed by a jury.

Why not? If 12 people who weren't smart enough to get out of Jury Duty can see the obviousness of some patents why not let them have their shot? Here on /. we almost always second-guess the USPTO.

Re:Why Not? (4, Insightful)

19thNervousBreakdown (768619) | more than 3 years ago | (#35567054)

I would prefer to negate the need for second-guessing the USPTO at all, as would, apparently, everybody who actually makes things for a living.

It's got to be getting harder and harder to claim that the patent system exists to "promote the Progress of Science and useful Arts", when regardless of why it was created it clearly now exists to line otherwise uninvolved parties' pockets off of the capital friction.

Re:Why Not? (4, Insightful)

PopeRatzo (965947) | more than 3 years ago | (#35567824)

It's got to be getting harder and harder to claim that the patent system exists to "promote the Progress of Science and useful Arts"

Does anyone bother to still claim that? It seems like the people who have been attacking the real intent of intellectual property, people like the patent trolls and just about every big corporation and the RIAA and MPAA and Sony and Disney, etc etc are dropping a lot of the pretense and are getting a lot more comfortable just letting the evil show through. Because they can.

It starting to seem like a lot of the really really bad actors in our world who have maybe kept a low profile over the past decades or at least spent a lot of money on public relations and image management are starting to just figure "what the hell" and are letting it all hang out. I'm seeing it in the political sector, the financial sector, the corporate sector. Look at the huge "Fuck You" that's implicit in AT&T's takeover of T-Mobile. They're saying to the Justice Department: "Don't even think about stopping us because we're bigger than you". Look at the Koch Brothers and their no-bid takeover of Wisconsin public utilities via the teabagger government. Look at the health insurance companies and their 50% increases in premiums, claiming it's because of health care reform even though the meaningful part of health care reform is still a year away. Look at Sony. Look at the banks and the mortgage servicing scandals. foreclosure scandals and newly announced $5 ATM fees. Look at the oil companies. It's like they feel like there's no longer any need to spend money and effort to appear like their benign because their power puts them out of our reach. Maybe they're right.

Re:Why Not? (2)

pwizard2 (920421) | more than 3 years ago | (#35567382)

It's strange why people view jury duty as something to avoid when it an excellent opportunity to practice persuasion skills. With both of the parties involved in a trial counting on your support, you can manipulate the outcome of a case as you see fit (possibly even setting precedent in some instances) if you can convince the other people in the jury to go along with you.

Re:Why Not? (0)

Anonymous Coward | more than 3 years ago | (#35567400)

If your comment is serious, go get some help/counseling because you're probably a sociopath.

Re:Why Not? (0)

Anonymous Coward | more than 3 years ago | (#35567838)

Some dude on /. sounds like a sociopath? Not really news.

Then again, this is /., so pointing that out as though it were news might just qualify you as our next addition to the editorial staff.

Re:Why Not? (1)

CityZen (464761) | more than 3 years ago | (#35567938)

Whether he's a sociopath or not depends upon what he "sees fit." If he sees fit to "right wrongs" (according to some reasonable standard), then perhaps he isn't.

Re:Why Not? (0)

Anonymous Coward | more than 3 years ago | (#35568208)

And punching cops in the face is an excellent way to practice your long-distance running. The public views both as avoidable, irritating encounters with the justice system.

Re:Why Not? (4, Insightful)

Altanar (56809) | more than 3 years ago | (#35567570)

"smart enough to get out of Jury Duty'"... Please, enough with the ancient comedy routine. There are many people, myself included, who don't try to weasel out of their civic duty. I guess it's better this way, though. I really don't want someone who cares so little about the legal system to decide my fate if I were ever arrested for something.

Re:Why Not? (3, Informative)

hairyfeet (841228) | more than 3 years ago | (#35567758)

Uh huh, let me tell you a little story bud. my mom did her civic duty, even used up her vacation time to sit on a jury. Afterward she came in looking like a ghost and said "NEVER take a jury trial EVER! ALWAYS take a judge!" when I asked her what happened here is what I was told:

It was a simple arson case which frankly never should have been brought to trial. The investigator admitted under oath he didn't know WHAT had started the fire, couldn't even say for sure it was arson, the guy had NO motive as he didn't even have enough insurance to cover the place and was gonna have to file bankruptcy and probably lose his home as well, yet the jury voted 11 to 1 to convict Why would they do that with no evidence? "Because he is Italian and Italians are in the mob and burn buildings. Haven't you seen Goodfellas?" That's right children, if my mom hadn't been on the jury that guy would be 10 to 20 thanks to a Joe Pesci performance.

As for TFA MSFT should have done the smart thing and just bought the company out. It just shows what a shitty leader Ballmer is compared to Gates because once it looked like they had a chance Gates would have just bought them out and called it a day. The last thing MSFT needed was more negative publicity, especially with regards to their Office suite which is what this is about. They should have just bought them out and moved on.

Re:Why Not? (0)

Anonymous Coward | more than 3 years ago | (#35569340)

Normally I'd think "why should I take the opinion and understanding of one juror I've never met and know nothing about instead of the other 11 and conclude anything at all about the jury system?" but since it's your mom... ah, no, anecdote is still a pointless waste of space. Jury wasn't unanimous and it was your mom in the minority, therefore I should conclude that the jury system is fundamentally flawed? WTF?

And what's more (1)

Sycraft-fu (314770) | more than 3 years ago | (#35567868)

You find that some really smart people sit on juries. Not every jury, not all the time, but it isn't some kind of "dummies only" thing. Heck, look at the Terry Childs case. There was a CCIE on his jury. Not only does that mean a very smart person (it is hard as hell to get) it is an education and experience right on point of the trial.

Actually, when you do a little lookin' you find out that blue collar workers are often under represented. Why? Well jury duty pay is laughably low. It doesn't cover parking in some places. We are talking $10 per DAY in some states. Now while your employer is required to give you time off to go, they aren't required to pay you. So what happens? Well people with salaried jobs are generally set. Their employer gives them the time, and they get fully pay. Usually doesn't count against vacation or anything. So while it might be a hassle, it is fine. Blue collar workers? They can go, but no pay. They take a massive pay cut to do their civic duty. These are, of course, the people less able to afford such a pay hit.

So what happens? They skip, of course. What else can they do?

This "People too stupid to get out of jury duty," is something partially perpetuated by Hollywood but mostly by jackasses who think they are so much smarter than everyone else (and almost always are not as smart as they think they are). Do you get some dumb people on juries? Sure, because a jury is made up of regular people and not all people are smart. However it is less than you'd think.

Also this idea that they weed out anyone with the slightest problem (or intelligence) is bunk. For extremely important cases, jurors get vetted pretty hard and there are a lot of challenges allowed by lawyers on both sides. For normal cases? Has to be a pretty good reason or the judge won't accept a challenge.

Re:And what's more (1)

number11 (129686) | more than 3 years ago | (#35568594)

Also this idea that they weed out anyone with the slightest problem (or intelligence) is bunk. For extremely important cases, jurors get vetted pretty hard and there are a lot of challenges allowed by lawyers on both sides. For normal cases? Has to be a pretty good reason or the judge won't accept a challenge.

Maybe it's different where you are. Last time I was in a jury pool, the two cases I was assigned were a bar assault, and a shoplifting case. You wouldn't call either "extremely important", except maybe to the defendant. Something like 2/3 the pool was removed by lawyers from one side or the other in both cases. Both sides had a certain number of challenges (10?) that they didn't have to give any reason for. Jurors were questioned in public, and it was pretty obvious that they didn't want anyone who might introduce ideas of their own (and I think there is good legal reason for that) .

The demographics (large city) weren't "too stupid to get out of it", some were excused because they couldn't risk 2 weeks of absence from work, their English wasn't good enough, etc. It seemed like a pretty good cross section of the population, though retired people were over-represented and high-income types were under-represented.

The Solicitor General is full of Shit (5, Insightful)

blair1q (305137) | more than 3 years ago | (#35566952)

There's no agency in government that should be accorded the singular privilege of not having to be second-guessed by a jury.

Re:The Solicitor General is full of Shit (3, Insightful)

mordors9 (665662) | more than 3 years ago | (#35566990)

It's a brave new world.

Re:The Solicitor General is full of Shit (2)

Dunbal (464142) | more than 3 years ago | (#35567008)

Have we gotten to "Four legs good, two legs better" yet?

Re:The Solicitor General is full of Shit (1)

Baloo Uriza (1582831) | more than 3 years ago | (#35567354)

Yes. Hang around furries more, and you'll understand this.

Re:The Solicitor General is full of Shit (1)

Belial6 (794905) | more than 3 years ago | (#35567562)

Given the stats on movies like Shrek 2

http://boxofficemojo.com/movies/?id=shrek2.htm [boxofficemojo.com]

I'm pretty sure he already does hang around with furries, as I'm not sure how he would avoid it.

Re:The Solicitor General is full of Shit (5, Insightful)

mangu (126918) | more than 3 years ago | (#35567046)

TFA says "The amicus brief from the U.S. solicitor general says that the USPTO can be trusted to be the expert, over a jury".

I had always thought the correct procedure was for experts from both sides to present their opinions in court and let the jury sort it out. It seems that the US government now believes their experts are above juries, courts, and all that shit.

What matters to them is that "the preponderance standard would diminish the expected value of patents." Raising the expected value of everything seems to be the golden rule today. I have an absolute right to all the profit I expect. Sigh...

Re:The Solicitor General is full of Shit (5, Insightful)

blair1q (305137) | more than 3 years ago | (#35567114)

What he's saying, in reality, is that he thinks the preponderance standard does not make correct decisions. Which means he questions the validity of all civil litigation.

What the fuck is someone with that attitude doing arguing this nation's business before the Supreme Court?

Re:The Solicitor General is full of Shit (3, Insightful)

h4rr4r (612664) | more than 3 years ago | (#35567192)

Speaking truthfully?

I was not aware one had to agree with something to be well versed in it.

Re:The Solicitor General is full of Shit (1)

AvitarX (172628) | more than 3 years ago | (#35567352)

I don't think entirely that's true.

I've sat through a few trials where key parts of the jury instructions used "clear and convincing"

Re:The Solicitor General is full of Shit (0)

Anonymous Coward | more than 3 years ago | (#35567430)

Hmmm... what I thought was said was that, "Microsoft and its supporters are arguing that the "clear and convincing" standard inordinately raises the burden of proof to invalidate a "bad" patent."

My read is that they want to use the same techniques that are successful in marketing. Clearly conning people with persuasive arguments rather than facts which can be difficult to establish and harder to argue. Thus rendering the phrase, "burden of proof," synonymous with the word, "costly."

It's just another example of desire on the part of a corporation to transform government in its image. Cheaper rarely works out to be better for the consumer, and if the mission of government is to better the situation of all its citizens, then the last company on the planet I'd trust to help revise judicial standards would be Microsoft.

Re:The Solicitor General is full of Shit (1)

Belial6 (794905) | more than 3 years ago | (#35567620)

Cheaper rarely works out to be better for the consumer,

What?!?!?! That is a truly bizarre thing to say. Do you really want to go back to a time when books could only be afforded by the wealthy? When computers could only be bought by the largest of corporations? Cheaper has been awesome for the consumer. Not always, but generally. I LOVE the fact that food is so inexpensive that I can afford exotic foods like pineapples and mangos, which would have been prohibitively expensive to get a hold of just a couple of generations ago.

Re:The Solicitor General is full of Shit (1)

kwbauer (1677400) | more than 3 years ago | (#35568362)

Exactly the same thing that his predecessor is doing on the Supreme Court even after she argued before the Supreme Court that the government actually does have the right to prevent a corporation from publishing a book if the government does not like the political statement that the book makes. And yet, the majority on Slashdot have no problem with her being there and feel that the Supreme Court was wrong for ruling against her in that case.

Re:The Solicitor General is full of Shit (1)

Curunir_wolf (588405) | more than 3 years ago | (#35567226)

It seems that the US government now believes their experts are above juries, courts, and all that shit.

You nailed it. Included in "all that shit" would be those complete unqualified to be of, by or for the government: "the people".

Re:The Solicitor General is full of Shit (2)

bryguy5 (512759) | more than 3 years ago | (#35567728)

Lets hope these new middle east democracies get there act together in time to help liberate us from our rulers that are tired of all the problems with juries, and elections

Re:The Solicitor General is full of Shit (0)

Anonymous Coward | more than 3 years ago | (#35567090)

Just more Hope and Change, coming atcha 24/7 from Washington.

Re:The Solicitor General is full of Shit (-1)

Anonymous Coward | more than 3 years ago | (#35567180)

roflmaololrofl

Change you can believe in

Re:The Solicitor General is full of Shit (5, Insightful)

517714 (762276) | more than 3 years ago | (#35567276)

I suspect that is one amicus brief that won't have any traction. Imagine trying to convince a court that a Federal agency should have final say instead of a court.

Re:The Solicitor General is full of Shit (0)

Anonymous Coward | more than 3 years ago | (#35569378)

Not really, the Supreme Court has held the Constitution allows the Congress to empower the Patent and Trademark office with the task of granting Patents.

The SCOTUS put patent and copyright reform squarely back on Congress. One thing about a truly conservative court is that they are not going to overturn decisions of Congress.

In the case of patents and copyrights, I think the courts themselves want to push these issues back on Congress. In this case, the patent has been reviewed twice by the PTO. Even under stricter rules it still passed. I think they want to shift the tide and stop the constant re-trials... Essentially patents are granted by laws, then argued for ten years in court if somebody rich enough doesn't like it.

This case is a pretty clear example of patents protecting the little guy. It is also a unique case in that the PTO is familiar with the whole story because they use the product they granted a patent for. Ultimately, the government lawyer is saying that the decisions made under law should stand without the court being asked to overrule them all the time.

Re:The Solicitor General is full of Shit (3, Informative)

ffflala (793437) | more than 3 years ago | (#35567420)

There's no agency in government that should be accorded the singular privilege of not having to be second-guessed by a jury.

True enough, but despite the article's paraphrasing that's not what the brief from the Solicitor General actually says. The brief says that juries can screw up, and that lowering the standard needed to get claims like this to a jury will create disincentives to both inventing and patenting inventions.

"The clear-and-convincing-evidence standard also furthers the reliance interests created by a patent grant by affording the patent holder enhanced protection against an erroneous jury finding of invalidity. By allowing a lay jury to second-guess the PTO's judgment even in close cases, the preponderance standard would diminish the expected value of patents and would reduce future inventors' incentives to innovate and to disclose their inventions to the public."

Re:The Solicitor General is full of Shit (1)

king neckbeard (1801738) | more than 3 years ago | (#35567524)

With the preponderance standard, at least on paper, a jury is just as likely to screw up on invalidating a valid patent as it is to screw up in upholding an invalid patent, making it a 'fair' standard. Clear and convincing being needed for invalidation means that the bias is in favor of the patent holder. It doesn't make sense to me for courts to uphold patents that appear to be more likely to be invalid than valid, which is all that will be protected by a C&C standard.

Re:The Solicitor General is full of Shit (4, Insightful)

sconeu (64226) | more than 3 years ago | (#35567432)

Great.

So the PTO issues all patents and says, "Let the courts sort it out."

The Solicitor General says, "Don't let the courts sort it out."

I hope that MS kicks the us.gov's ass on this one, and I am no MS fan.

MS undoes Congress Intent (0)

Anonymous Coward | more than 3 years ago | (#35567740)

The Solicitor General's position, though, has support in actual legislation. (See 35 USC 282: "A patent shall be presumed valid.") If patents are entitled to a presumption of validity, what possible presumption could be said to exist in a system where mere preponderance of the evidence can render it invalid?
 
I can accept that few people here like the patent system, but surely we like litigation less. Which defendant settles if they think they have some chance of crossing the 50% line? Which valid patent, mistakenly invalidated by a jury, can see that corrected on appeal- when can 'no reasonable jury have found they didn't cross'?

Re:MS undoes Congress Intent (1)

Anthony Mouse (1927662) | more than 3 years ago | (#35568688)

The Solicitor General's position, though, has support in actual legislation. (See 35 USC 282: "A patent shall be presumed valid.") If patents are entitled to a presumption of validity, what possible presumption could be said to exist in a system where mere preponderance of the evidence can render it invalid?

The presumption that it is valid unless the defendant can bear the burden of showing that it isn't by the preponderance of the evidence?

Which defendant settles if they think they have some chance of crossing the 50% line?

Which plaintiff litigates? A patent troll doesn't want to risk a larger probability of having their patent invalidated -- better to just move on to an easier mark.

Which valid patent, mistakenly invalidated by a jury, can see that corrected on appeal- when can 'no reasonable jury have found they didn't cross'?

Which invalid patent, mistakenly validated by the PTO, can see that corrected on appeal under the existing standard?

And the winner is... (5, Insightful)

olsmeister (1488789) | more than 3 years ago | (#35566970)

the lawyers.

Re:And the winner is... (0)

Anonymous Coward | more than 3 years ago | (#35567004)

+$400 per hour Insightful

Re:And the winner is... (1)

Gaygirlie (1657131) | more than 3 years ago | (#35567348)

Sometimes I feel I should just go ahead and start studying law simply because there seems to be ever-increasing need for lawyers. I mean, I would NEVER run out of work!

Re:And the winner is... (2)

gandhi_2 (1108023) | more than 3 years ago | (#35567384)

demand != need

Re:And the winner is... (1)

Gaygirlie (1657131) | more than 3 years ago | (#35567540)

demand != need

If you wish to nitpick, then sure, let's do so: it depends on your viewpoint. For example from the viewpoint of large, international corporations it is indeed verily a need: they _need_ to please their share-holders, they _need_ to be able to protect themselves against other companies who are hoarding lawyers and just waiting for a time to strike, they _need_ a sizeable set of lawyers from many different fields of expertise in order to actually be able to do all that and so on. One could also argue that they feel they need lawyers as they feel pressure to go on the offensive and sue other companies.

From the standpoint of a regular consumer it can be seen as demand instead. A regular consumer doesn't 'need' a lawyer generally and can feel like all the power-play those aforementioned companies do could be done without lawyers and as such it isn't really a justifiable 'need' for lawyers, it is just a wish for them.

Indeed, it can be seen from several viewpoints, and most likely there are many more than just the two mentioned here.

Re:And the winner is... (1)

ArsonSmith (13997) | more than 3 years ago | (#35567988)

There is no such thing as a need, only wants. Sometimes in order to satisfy a want there are dependence that you may refer to as a need, but at the core it is always a want.

At least they get their comeuppance (2)

ickleberry (864871) | more than 3 years ago | (#35566978)

An i 4 an i... as they say

Correct me if I'm wrong... (1, Interesting)

RyuuzakiTetsuya (195424) | more than 3 years ago | (#35567030)

...which usually means I'm wrong, anyway, but didn't i4i have a specific and very valid claim to a patent here?

Software patents are bad, no doubt, and we're seeing a horrible precedent set, but wasn't the specifics behind their use of XML in documents legitimately infringed by Microsoft?

I'm torn here. First, I really don't like the idea of being sued over code I may write.

HOWEVER, I do like the idea of suing any bastard who's masochistic enough to implement XML the way Microsoft did in their office suite.

Re:Correct me if I'm wrong... (1)

RyuuzakiTetsuya (195424) | more than 3 years ago | (#35567078)

I meant, sadistic, however, having to write, test and verify that code works is self flagellation at some level.

Re:Correct me if I'm wrong... (0)

Anonymous Coward | more than 3 years ago | (#35567100)

No matter what ruling this has, it will not affect you, only corporations. In fact, at best no change. At worst, corporations would get more protection against patents, and individuals and small companies will not. Individuals and small companies are ruled by fear of patent lawsuits rather than lawsuits themselves. Big corporations can still pay the lawyers. I am rooting for i4i for this reason.

Re:Correct me if I'm wrong... (3, Informative)

astrodoom (1396409) | more than 3 years ago | (#35567166)

The patent is essentially over a mapping of architecture and content of a document in XML. It describes using a mapping scheme to map the two together thus separating them from being stored solely in the document. It's essentially a patent that describes nothing whatsoever beyond storing information about a document performing a particular form of hashing. Shouldn't be a patent.

Re:Correct me if I'm wrong... (0)

Anonymous Coward | more than 3 years ago | (#35567530)

Thing is, your explanation makes perfect sense to me and many others on this site, but what are the odds the judge or anyone in the patent office has the knowledge of an average slashdotter? The USPTO's version of "peers in the field" is whoever they can get for cheap who'll shoot the patent applications through quickly.

Re:Correct me if I'm wrong... (1)

Ant P. (974313) | more than 3 years ago | (#35568280)

Doesn't that description also fit XSLT/XSL-FO, which have been around probably as long as XML has? Or is this a patent for doing it using a computer?

Re:Correct me if I'm wrong... (0)

Anonymous Coward | more than 3 years ago | (#35567304)

It's idea ownership. That's it's right name whatever they choose to call it ("intellectual property"... why not "mind-related assets"?).

It's a heinous concept and thus the EFF are against it.

OTOH, M$ is suing Barnes & Noble through the same instruments. Even for a deranged legal system which harbors the notion of "owning thoughts", there must be coherence: either idea ownership is valid or not.

It can't work on a case-by-case basis.

Re:Correct me if I'm wrong... (1)

king neckbeard (1801738) | more than 3 years ago | (#35567444)

EFF isn't taking quite that strong of a position. They aren't explicitly against patents, but they want to make sure that patents, especially business method and software patents, at least have proper checks on them so they aren't as likely to be used in an invalid manner.

Re:Correct me if I'm wrong... (3, Interesting)

phantomfive (622387) | more than 3 years ago | (#35567794)

There is a link to the patent here [google.com] . It was filed in 1994, and thus predates the existence of XML, but not SGML. Of course, to understand any patent, you have to look at the independent claims, and I think the following is probably the claim that most applies to Microsoft word:

20. A method for producing form a document made up of metacodes and content, a map of metacodes and their addresses of use in association with mapped content of the document and stored in distinct map storage means, the method comprising:
(a)reading the content of the document until a metacode is found;
(b)copying the content and storing the copied content in a mapped content storage;
(c)noting in the map the found metacode and its position in the content; (d)repeating the process of (a)-(c) until the entire document has been processed; and then (e)providing the document as the content of the document separately from the metacode map of the document.

It seems pretty clear that this applies to Microsoft word, and essentially anything else that stores documents as XML. Note that the patent actually uses xml shaped tags in its example section (not sure how they thought they were being original, since they clearly copied it from SGML).

In any case, this is important because it is a clear issue of patents stifling innovation, which means it will take longer to invent cool stuff. If you like cool stuff to be invented, you want this patent to be invalidated (and really, it doesn't hurt Microsoft all that much, they just have to remove the XML from Word).

Re:Correct me if I'm wrong... (1)

shutdown -p now (807394) | more than 3 years ago | (#35568224)

and really, it doesn't hurt Microsoft all that much, they just have to remove the XML from Word

Careful what you ask for - ODF is XML too, and Word supports it today... tomorrow it depends on the outcome, I guess.

Re:Correct me if I'm wrong... (1)

phantomfive (622387) | more than 3 years ago | (#35568296)

Ya, and depending on the definition of 'document,' this could affect a LOT of people. In fact it's hard to think of what kind of document it doesn't cover, excluding straight text (and possibly CSV).

The only bright side, if the patent is upheld, is it might encourage congress to take on patent reform (but I wouldn't expect that to happen before 5 years, based on how long it typically takes for problems to get resolved by congress).

US declares itself a traitor to the people (0)

Anonymous Coward | more than 3 years ago | (#35567144)

It's inspiring to see that Microsoft, fighting for the common good for the first time in its existence, is destined to fail for one of the few notable times in its existence.

Re:US declares itself a traitor to the people (1)

517714 (762276) | more than 3 years ago | (#35567564)

At the risk of being pedantic, it is not the "US", and it is not the "US Government" as the Article claims, it is the Executive branch. When bad legislation is passed it is Congress' fault, when bad federal court decisions are made it is the fault of the Judicial Branch, and when a bureaucrat speaks or acts it is the Executive branch. Once the Supreme Court has weighed in on the issue, then it will be the US Government. I like to keep them separate so I can keep track of which one is selling us out the fastest.

I thought i4i was shorthand (1)

517714 (762276) | more than 3 years ago | (#35567148)

for Microsoft's corporate philosophy.

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Re:mulberry outlet (0)

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Agh (1)

revxul (463513) | more than 3 years ago | (#35567428)

This is a terrible precedent.

Re:Agh (0)

Anonymous Coward | more than 3 years ago | (#35567490)

This is just a brief—pretty much anybody can write a brief; it's just the opinion of the writer. No precedent was set here.

Are you really kidding me? (0)

Anonymous Coward | more than 3 years ago | (#35567498)

Can we destroy the USPTO please? I am a developer and I read the patent. It sounds like they are trying to patent something like XSLT and nothing more. In the damn patent they describe a bunch of prior art. Why? Because developers map crap all the time, they create domain specific languages and do other of those things on a damn near regular basis. I could not even count the number of times I created mapping documents to "store metacodes of the document in a separate and distinct storage in a structure called a metacode map." I probably should not admit this cause I may get sued, but I call those things configuration files, transforms, and the such.

"Delivering a complete document would entail delivering both the content and a metacode map that describes it." I see this pretty much every day in code. I mean this could be describing the relationship between an HTML document and CSS. Or XML and an XSLT. The statement in and of itself is so stupidly obvious as to be painful. I could probably go back to a thousand years BC and find evidence of such invention for like oh I don't know how we learned to read hieroglyphics.

And further to this nonsense, this sounds an aweful lot like what Adobe does to create a PDF file, but the PDF format is much much more detailed. And then the patent goes into describing a markup language with tags an everything. If this is not obvious and does not have previous art, then I am copyrighting the use of { and ; in code. I'll sue every C based language out there.

The sides are even more telling. A bunch of idiot lawyers, politicians, venture capitilists vs the biggest names in tech. And you want to tell me this is a valid patent? I mean granted, the big names in tech have more than a few questionable patents. But this is just yet another example of the failure of the USPTO and why unless a patent for software can show that it is not derivative in any way and is wholly unique and not in use a patent should not be granted. The burden of proof should be at the time of applying for the patent, not getting the patent than having to prove it is inane.

Re:Are you really kidding me? (0)

Anonymous Coward | more than 3 years ago | (#35569140)

The sides are even more telling. A bunch of idiot lawyers, politicians, venture capitilists vs the biggest names in tech. And you want to tell me this is a valid patent? I mean granted, the big names in tech have more than a few questionable patents. But this is just yet another example of the failure of the USPTO and why unless a patent for software can show that it is not derivative in any way and is wholly unique and not in use a patent should not be granted. The burden of proof should be at the time of applying for the patent, not getting the patent than having to prove it is inane.

Agreed.

Any time you see Microsoft and Red Hat on the same side of an argument, that's a sign that you should have paid more attention long ago.

Reminder (1)

Anonymous Coward | more than 3 years ago | (#35567596)

Microsoft is not always wrong.

Someone needs to question whats going on. (1)

bryguy5 (512759) | more than 3 years ago | (#35567642)

Someone needs to question the US Patent Office and the whole patent system. It's current state lies somewhere between broken and totally "busticated". If Congress or the Courts won't man up to the challenge I say let the Jury do it. I don't care if your Democratic or Republican if your not pissed off your not paying attention

No alternative resolution (1)

fru1tcake (1152595) | more than 3 years ago | (#35567688)

Is there some secondary way of establishing patent royalty eligibility without resorting to an expensive legal battle? If some company claims that my product violates their patent, it appears the only options are for me to go along with it and pay their royalties, or to see them in court.

To me (an Australian) the litigiousness of US culture and business is just as broken as the patent system, and it is sad to see this trend spreading here. It is a shame that judges can't (when appropriate) just say, "Stop being a greedy bastard!" and throw people in prison for pursuing money that they clearly don't have any right to. (I know this idea is plagued with problems but I reserve my right to be idealistic on occasion :).

Re:No alternative resolution (1)

Opportunist (166417) | more than 3 years ago | (#35568712)

Oddly, something similar exists in our legal system. A judge can (and actually does, though IMO by far not often enough) throw out cases when it is evident that the sole reason for the lawsuit is that one side just wants to stall the other side, e.g. to keep them from launching a product 'til they have one themselves ready.

Disappointed with this brief (0)

gnasher719 (869701) | more than 3 years ago | (#35567718)

Here's why: I am quite very strongly against stupid patents, and software patents tend to fall into the "stupid patent" category. Now the i4i case seems to be the strange and unusual situation where a company (i4i) is honestly competing as best as they can, gets ripped off in a completely legal way by the big bully Microsoft, and turns into a patent troll and wins - so two wrongs produced a right.

But when Microsoft argues that it should be made easier to invalidate bogus patents, that is an absolute good thing. Yes, it would also hurt i4i who deserves a payout from Microsoft, but not one for patent infringement, but the people hurt most would be patent trolls.

Re:Disappointed with this brief (2)

bryguy5 (512759) | more than 3 years ago | (#35567818)

The law should be the law whether it's M$ or RMS on the stand. If we could stop all this post-modern relativistic crap of punishing the power holders and balancing market forces and just ask the simple question what is the "right way to do things" we could find our way out of this mess we are in.

Re:Disappointed with this brief (1)

Opportunist (166417) | more than 3 years ago | (#35568702)

The right way to do things IS to find balance. There has to be a balance between producer and consumer, between employer and employee, between rights owners and rights users. The free market DEPENDS on this balance, and only as long as this balance exists there actually is a free market.

Or rather, once such a balance is achieved we can see how the free market works.

Re:Disappointed with this brief (0)

Anonymous Coward | more than 3 years ago | (#35569060)

The problem I have is that i4i is most definitely not honestly competing here. The patent is on technology that well and truly predates them and is for a very obvious extension of that existing technology, ie. SGML. There is no innovation whatsoever by them and I find it hard to believe anyone would actually think they deserve a payout from ANYONE for it, let alone Microsoft.

Patent and Copyright law (0)

Anonymous Coward | more than 3 years ago | (#35567804)

Patent and Copyright law is so screwed up, its beyond belief. 1. There should be no patents on computer software. 2. Patents should run for a single term with a maximum term of 20 years (PERIOD!). If company A has a patent that company B wants, they can sell it, but every time a patent is sold, the remaining time on the patent is cut in half. A brand new patent, sold the next day, and again the day after that, is now good for 5 years. If its sold again 6 months later, its then good for 27 months. Copyright should be good for a single term of 20 years, no sales or transfers allowed. The intellectual property laws have caused innovation to suffer (and everyone else as well). Its been a boon for wealthy corporations, and the lawyers they retain. Everyone else (society in general) pays and suffers because of their greed and governments willingness to bend over anytime they want ever more of whatever they want. Congress critters and Senators get set up for life, and everyone else pays and pays and pays. No one is looking out for the general public.

OOXML at risk, perhaps? (-1)

Anonymous Coward | more than 3 years ago | (#35567962)

Please, tell me that this documents patent infringement by OOXML, and not by OpenOffice's XML. Seeing Microsoft struck by their own patent litigation philosophy to discredit that horrible standard would be, well, satisfying.

despotism (0)

Anonymous Coward | more than 3 years ago | (#35568168)

So 12 citizens are fine to decide the life or death of a fellow citizen, but not up to making patent decisions?
I'm fairly certain the basis behind our entire legal system is that 12 responsible citizens, armed with direction from a judge regarding the law, can reach reasonable decisions.

The idea that some small faceless government bureaucracy or functionary can make better ones....that road leads to despotism.

Think of the products! (2)

grizzifus (2021406) | more than 3 years ago | (#35568266)

As sad as it is, I would rather the govenment just pump huge amounts of money into patent office so that they can hire lots of good lawyers to stop bad patents before they exist. I mean we have to pay for all these lawyers anyway everytime we buy a product, as well as receiving less competitve products. We might as well just simplify the system by moving all the lawyers into the patent offices, then at least products don't suffer.

Shouldn't be second guessed by a jury? (3, Insightful)

Opportunist (166417) | more than 3 years ago | (#35568672)

If 12 people "of virtues true" are good enough to decide over life and death of a person, they are more than capable to decide over some insignificant patents.

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