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Justices Question Microsoft's Vision of Patent Law

Soulskill posted more than 3 years ago | from the pipe-down-clarence dept.

Microsoft 106

angry tapir writes "US Supreme Court justices on Monday questioned whether they should side with Microsoft and weaken the legal standard needed to invalidate a patent, with some justices suggesting there are alternatives to changing established law. The issue arose as part of the case involving Redmond and i4i."

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Microsoft will prevail. (0, Funny)

Anonymous Coward | more than 3 years ago | (#35864456)

You just don't mess with Redmond, son.

... and Microsoft will pay for its own success (5, Insightful)

Taco Cowboy (5327) | more than 3 years ago | (#35864566)

While M$ may prevail in this case, the case itself ironically can be used to invalid many of M$'s own patents.

Don't cry foul when what you wish for come back to take a big bite at your ass, Micro$oft !

Re:... and Microsoft will pay for its own success (0)

Anonymous Coward | more than 3 years ago | (#35864628)

I've got to remember to patent a method for mocking corporations by replacing the letter S with a dollar sign. That way you guys could pay me royalties when you do that...

Re:... and Microsoft will pay for its own success (1)

jav1231 (539129) | more than 3 years ago | (#35865092)

Well it used to fit. It's nice to see M$...er...Microsoft no longer ruling the known universe. The irony of this whole suit is delectable, though the outcome might set a bad precedent. It's still just hard to not enjoy them getting their comeuppance.

Re:... and Microsoft will pay for its own success (1)

oliverthered (187439) | more than 3 years ago | (#35867026)

I've got a new method for when they start complaining about completion.

Any company name or product that starts with something that sounds like cry should be prefixed with cry....
Additionally and references to evolution, such as Apes, missing things such as Holes and animal distress sounds should be phonetically extracted.
Money may also be objectified.

Such that aforementioned unhealthy attachment to fictional entity could be written thus:
cryCrow$oft

Other fictional entities may go by the names of:
youBooed
BooGoal
cryPhoney
crySad
iBad
App hole
Ape Hole
Stiff Hand Job.
etc....

Re:... and Microsoft will pay for its own success (1)

Aeternitas827 (1256210) | more than 3 years ago | (#35865150)

Years of prior art would invalidate such a thing. All a lawyer would need to do is Google 'M$' or 'Micro$oft'--and it would be to them, because it's pretty certain that's not part of the USPTO's SOP to do so--and invalidation would occur.

You might be able to scare some folks into licensing before that happens, though.

Re:... and Microsoft will pay for its own success (2)

SlightOverdose (689181) | more than 3 years ago | (#35864756)

Microsoft don't generally have a habit of being a Patent troll, so are unlikely to be overly concerned if some of their patents are invalidated. Just like IBM, they would generally only hold patents only as a defensive measure against being sued themselves. It's "Mutually Assured Destruction" applied to patents.

Re:... and Microsoft will pay for its own success (4, Informative)

ozmanjusri (601766) | more than 3 years ago | (#35865226)

Microsoft don't generally have a habit of being a Patent troll

Microsoft claims that free software like Linux, which runs a big chunk of corporate America, violates 235 of its patents.

http://money.cnn.com/magazines/fortune/fortune_archive/2007/05/28/100033867/index.htm [cnn.com]

Why Did Microsoft Sell Off 22 'Linux-Related' Patents?

http://www.eweek.com/c/a/Linux-and-Open-Source/Why-Did-Microsoft-Sell-Off-22-LinuxRelated-Patents-618335/ [eweek.com]

TomTom gets allies in Microsoft Linux patent lawsuit fight

http://blogs.computerworld.com/tomtom_gets_allies_in_microsoft_linux_patent_lawsuit_fight [computerworld.com]

Microsoft's Linux patent bingo hits Google's Android

http://www.theregister.co.uk/2010/04/29/microsoft_htc_linux_patents/ [theregister.co.uk]

Re:... and Microsoft will pay for its own success (4, Interesting)

Gadget_Guy (627405) | more than 3 years ago | (#35865502)

Microsoft claims that free software like Linux, which runs a big chunk of corporate America, violates 235 of its patents.

And yet it has never done anything about that. It hasn't sued all the distros to stop the operating system. They did use the claim for a bit of FUDdery, but that is not being a patent troll.

Why Did Microsoft Sell Off 22 'Linux-Related' Patents?

That question was posed two years ago. Has there been an answer? Does posing a question that ultimately proved to be a big pile of nothing have any point other than being a bit of FUD back in the other direction?

TomTom gets allies in Microsoft Linux patent lawsuit fight

Microsoft licenses FAT32 to others. It is one of their products. TomTom used and refused to abide by the terms of the license. If they did a similar thing to the GPL license then nobody would think it wrong to go after them. And since this case, has Microsoft gone after any distros that include the file system?

My rule of thumb is that patent trolls don't have products, they just wait in the wings with their patent portfolio. I recently stated [slashdot.org] that I don't consider i4i to be a patent troll either, because they actively use their patents in a product of their own. I don't think that it is a good patent, but they got it so they might as well protect their IP.

Microsoft's Linux patent bingo hits Google's Android

To be fair, the phone industry seems to thrive on cross patent agreements and lawsuits. Who isn't suing everyone else? For example, Microsoft may have done a deal with HTC but Apple did actually sue them. Why does nobody claim that Apple is going after Linux when they do this just as they do about Microsoft?

Re:... and Microsoft will pay for its own success (2)

raistlinwolf (1365893) | more than 3 years ago | (#35865752)

Microsoft claims that free software like Linux, which runs a big chunk of corporate America, violates 235 of its patents.

And yet it has never done anything about that. It hasn't sued all the distros to stop the operating system. They did use the claim for a bit of FUDdery, but that is not being a patent troll.

They claimed Linux violates their property which may have the effect of scaring off potential users, how is that nothing?

Re:... and Microsoft will pay for its own success (2)

Gadget_Guy (627405) | more than 3 years ago | (#35866090)

They claimed Linux violates their property which may have the effect of scaring off potential users, how is that nothing?

As I said, it is FUD. But it certainly isn't the definition of a Patent Troll [wikipedia.org] .

undoing wrong mod (-1)

Anonymous Coward | more than 3 years ago | (#35865832)

undoing wrong mod

Re:... and Microsoft will pay for its own success (0)

hairyfeet (841228) | more than 3 years ago | (#35865596)

First of all, for those that write M$? Well here's your sign [penny-arcade.com] . Now as for Linux infringing patents? I'm sure I'll get hate for pointing this out, but they probably do. that is what happens when you allow software patents in the first place, as there is only so many efficient ways to figure an equation so whomever files on that equation first gets the patents and the others do it the hard way or cut a check.

This also ignores the fact that MSFT typically offers RAND for any and all of their patents, unlike patent trolls that are looking for the big fat check. How many articles did we see here on the TomTom case that pointed out MSFT offered the same RAND license they offered everyone else and got the bird in return?

So this comes down to NSTAAFL and just because YOU want to offer YOUR product as "free as in beer" does NOT mean those that own patents on things you may need for your free as in beer product HAVE TO give it to you. Frankly I believe if the F/OSS movement continues on the "free as in beer" path they will end up "free as in worthless" as R&D today costs billions and NO Linux foundation currently has the $$$ required to compete with MS Research or Apple ATM.

Be that as it may here are the facts: Is Linux infringing? I have no doubt, it is simply too big a code base with so many patents handed out yearly for it NOT to be. Currently with software patents it is like tap dancing blindfolded in a minefield, sooner or later BOOM! That's your ass Mr Postman. Could they be worked around? Possibly if you don't mind Linux sucking hard, as all the efficient algos have been patented, and you'd certainly have to do without most sound and video as that has patents up the wazoo.

So let us ALL hope MSFT actually wins this one, as ANYTHING that makes it easier to invalidate software patents is a good thing for all. But unless you get SCOTUS to invalidate software patents (unlikely) then sooner or later your product, free as in beer or not, WILL come across a patent in a core module that simply can't be replaced without killing it. What then? Will you give up free as in beer, or will you take some horrible kludge workaround like having to use 30 digit numbers to arrive at 2 while everyone else can use 1+1 thanks to RAND? It will be interesting to see what happens when that day arrives.

Re:... and Microsoft will pay for its own success (3, Insightful)

somersault (912633) | more than 3 years ago | (#35865890)

You could just move to one of the many sane countries that doesn't recognise software patents.

Re:... and Microsoft will pay for its own success (3, Informative)

nmb3000 (741169) | more than 3 years ago | (#35865030)

While M$ may prevail in this case, the case itself ironically can be used to invalid many of M$'s own patents.

Don't cry foul when what you wish for come back to take a big bite at your ass, Micro$oft !

Microsoft might be many things, but a patent troll isn't usually one of them. That's one reason that Apple and Google are siding with them on this issue, the other being that these big technology companies are the primary targets for genuine patent trolls like i4i.

The entire patent system is in need of serious reform. Microsoft pushing to make it easier to invalidate all the completely [freepatentsonline.com] stupid [freepatentsonline.com] and pointless [freepatentsonline.com] patents the USPTO has gotten into the habit of granting is only a good thing. It's the first step in (hopefully) bringing some sanity back into the system, and I don't care if it's Microsoft, Apple, or ScumSoft doing the legwork and footing the bill.

PS: That doesn't help your "argument" [penny-arcade.com] .

Re:... and Microsoft will pay for its own success (1)

gbjbaanb (229885) | more than 3 years ago | (#35865514)

since when was i4i a patent troll? They actually made a product (admittedly only 1) which MS then proceeded to totally and blatantly steal. So now they have no product whcih makes them a patent troll in the eyes of the uninformed, but they are only sueing over their patent for their product that they got ripped off on.

Its a pity this patent was chosen as the one to go to court over. MS is guilty as hell here, whereas the patent awarded to Eolas (the browser embedding object one) who was a real patent troll would haver been a much more worthy case.

Re:... and Microsoft will pay for its own success (3, Informative)

somersault (912633) | more than 3 years ago | (#35865922)

Have you looked at their "patent"?

A system and method for the separate manipulation of the architecture and content of a document, particularly for data representation and transformations

Similar standards and applications which make use of the standard have been around since at least 1986 [wikipedia.org] .

Re:... and Microsoft will pay for its own success (1)

Pinky's Brain (1158667) | more than 3 years ago | (#35868298)

Try to design binary easily searchable data structure for XML ... see if you can do it without violating that patent.

Re:... and Microsoft will pay for its own success (2)

DrXym (126579) | more than 3 years ago | (#35866074)

Microsoft might be many things, but a patent troll isn't usually one of them. That's one reason that Apple and Google are siding with them on this issue, the other being that these big technology companies are the primary targets for genuine patent trolls like i4i.

They might be patent trolls but they hold such a massive and broad range of patents, many of which I expect most reasonable software engineers would not consider novel or specific. They can and have waved those patents around in a threatening manner and it's not hard to see how they could bury any potential competitor (especially a startup) in lawsuits if they felt like it.

Re:... and Microsoft will pay for its own success (1)

Necroman (61604) | more than 3 years ago | (#35867724)

So I used to work at LSI, the company that holds the Linked List patten. We actually had one of our patent lawyers give us a presentation talking about patents and showed us that specific patent and the grief it caused when it was granted. The lawyer made it clear to us that the title and abstract mean crap in patents, you should never base any judgement of a patent off of either of those fields. As a patent writer, you can basically have garbage in those 2 fields that have little relation to the Background, Claims, and Summary/Description.

The LSI patent is about a 1-direction Linked List that has auxiliary pointers that order the items of the Linked List differently. This actually makes inserting in the middle of the list almost impossible without full traversal.

The LSI patent is also almost unenforceable without having the source code available.

This patent takes an existing concept and makes a small modification to have the aux pointer (that isn't exactly a doublely linked list). If someone took them to court over it, I'm sure it could be invalidated the "next logical step" or as prior art. But I doubt they will ever flex that patent at anyone.

Re:... and Microsoft will pay for its own success (0)

Anonymous Coward | more than 3 years ago | (#35868022)

Microsoft might be many things, but a patent troll isn't usually one of them. That's one reason that Apple and Google are siding with them on this issue, the other being that these big technology companies are the primary targets for genuine patent trolls like i4i.

And yet patents is the only tool MS has to "compete" with Linux. [ffii.org]

In a surprising turn of events Microsoft pledged that it will not sue its users for patent infringement. [theregister.co.uk]

True, MS is not a pure patent troll, but they don't hesitate to get dirty when it's time to bury the competition -- and that's the "reason that Apple and Google are siding with them on this issue".

Re:... and Microsoft will pay for its own success (1)

Belial6 (794905) | more than 3 years ago | (#35868370)

That is debatable. MS may not actually file the paperwork to sue for lame patents, but that is because they don't need to. They use poor patents, or even patents that don't really exist to harm other companies and entities all the time. It may not fit the exact definition of 'Patent Troll', but it is awful close.

Re:... and Microsoft will pay for its own success (2)

RobertM1968 (951074) | more than 3 years ago | (#35865336)

While M$ may prevail in this case, the case itself ironically can be used to invalid many of M$'s own patents.

Don't cry foul when what you wish for come back to take a big bite at your ass, Micro$oft !

No, it cannot... ironically for the $ame rea$on$ a$ indicated by your exten$ive u$e of the dollar $ign above. They'll out-lawyer and out-muscle and out-money anyone smaller in such battles. And larger companies (such as Google) are ones they will avoid getting into suits with.

Re:... and Microsoft will pay for its own success (1)

c (8461) | more than 3 years ago | (#35866512)

> Don't cry foul when what you wish for come back to take a big bite at your ass

You're forgetting... Microsoft is by far one of the best at copying other peoples ideas, probably even better at it than open source desktop projects. It's part of their corporate genetics or something. If they don't have to worry about patent lawsuits, it opens up entire fields of things they can just outright copy rather than having pretend to partner and/or do complex patent cross-licensing agreements.

Otherwise, they have to actually invent their own new stuff.

Re:... and Microsoft will pay for its own success (1)

cavreader (1903280) | more than 3 years ago | (#35866936)

MS has certainly purchased tech from others and incorporated it into their own products over the years but out right copying? I find that acusation a little wide of the mark. That would mean the first company who produced an x86 OS could then turn around and claim that any x86 OS with a newer build date is copying. If someone uses square windows as the presentation foundation of the GUI then any other system is copying them unless they use circles or triangles in the GUI. Today FOSS encourages copying, or sharing if you like that term better,and in some respects this is slowing down the development of new application technology because the companies who spend the R&D money to develop and implement new ideas are concerned they are entering a minefield of potential legal actions and won't see an adequate return on their investment. FOSS defenitely has it's place but how many "community" developers have access to the next generation of CPU's to build and test their applications against?

Re:... and Microsoft will pay for its own success (1)

c (8461) | more than 3 years ago | (#35871190)

> MS has certainly purchased tech from others and incorporated it into
> their own products over the years but out right copying?

Absolutely. Microsoft is a collection of experts at seeing what things are popular, and incorporating them into their own products. They do it often and they generally do it well. In fact, I'd say their most memorable and spectacular failures have been when they did things they thought were innovation (*cough*Bob*cough*). That's not to say they don't have moments of true innovation, but it's not what we know them for. Indeed, given their emphasis on conservative corporate users real innovation would probably cost them a lot of sales.

I'm not saying this is necessarily a bad thing, nor am I saying it's a good thing. I'm saying it's standard operating procedure in this industry, and it's Microsoft's strong point; with their expertise they'll be a lot better off if they could do it without any fear of patent trolls (or even legitimate patent holders, assuming they exist).

With FOSS, copying is the norm because without a concrete goal like something which already exists, it's incredibly hard to build a community and keep it focused. When copies reach a cough "parity" things tend to turn weird... well, KDE 4 and GNOME 3?

Re:... and Microsoft will pay for its own success (1)

cavreader (1903280) | more than 3 years ago | (#35871828)

MS's biggest problem is backwards capatibility issues. They have such an extensive and varied user base that they spend a lot of their time trying to make sure their older products can interact with the newer products. Like making a version of Office that will only run on Windows 7 or later OS versions. They are starting down this road starting with drawing the line at Vista for IE9 support. Eventually they will rid themselves of their older product lines but it will take time. Most of the popular FOSS projects started out as applications that were initially designed and built by a single and usually closed source company. Community participation in designing something new from scratch would be full of all kinds of problems.

Re:... and Microsoft will pay for its own success (1)

shentino (1139071) | more than 3 years ago | (#35867018)

There's still copyrights to worry about.

How it works at Slashdot... (0)

Frosty Piss (770223) | more than 3 years ago | (#35864660)

Patents are BAD.

Unless Microsoft opposes the patent.

In that case, the patent must be upheld.

Re:Microsoft will prevail. (2)

517714 (762276) | more than 3 years ago | (#35864894)

Mi©®o$oft can't lose this case regardless of the court's ruling. If they prevail, Congress will step in and hand them the strong patent protection that they really want. If they lose, the courts hand it to them. They prefer the former since that allows them to get the specific language they want in the new law, and they get the win on this case.

Re:Microsoft will prevail. (1)

Aeternitas827 (1256210) | more than 3 years ago | (#35865170)

So, what you're saying is, Microsoft are aiming for a judgement that would cause the courts to invalidate over-broad patents, in the hope that Congress would create legislation that would try and buck the Judiciary?

Why would the Judiciary not strike such legislation down?

Re:Microsoft will prevail. (1)

517714 (762276) | more than 3 years ago | (#35865754)

The Judiciary has previously supported the contention that Congress is uniquely empowered to make patent and copyright law since it is explicit in the Constitution.

I'm confused (1)

TubeSteak (669689) | more than 3 years ago | (#35864486)

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

It sounds like they're arguing a product i4i released should count as prior art against a patent i4i later filed.

Huh?

Re:I'm confused (3, Insightful)

clang_jangle (975789) | more than 3 years ago | (#35864506)

I think the idea is "they released it without protection and after it had been on the market available for copying and/or reverse-engineering then they screwed us by seeking a patent".

Re:I'm confused (3)

jav1231 (539129) | more than 3 years ago | (#35865104)

Pot, meet Kettle...

Re:I'm confused (4, Funny)

Samantha Wright (1324923) | more than 3 years ago | (#35864534)

I guess that, in Microsoft's world, you can't patent something after releasing it. i4i isn't so impressed by that idea:

Microsoft's assertions that i4i included the XML editor in a product before applying for the patent and that it destroyed source code are "utter nonsense," Owen added.

Still, this is all just a bucket of dren. No one should be able to patent anything involving XML, and the reasoning is simple: the kind of cruft that accumulates in XML files (and, by extension, application-specific XML parsers) is analogous to biological evolution, and therefore XML is a phenomenon outside of human control. It would be like patenting natural genes or something! And we all know that would never be legalized.

Re:I'm confused (1)

gstoddart (321705) | more than 3 years ago | (#35867106)

the kind of cruft that accumulates in XML files (and, by extension, application-specific XML parsers) is analogous to biological evolution, and therefore XML is a phenomenon outside of human control

Ummmm ... what?

How is a structured document type, and ideally one which uses DTDs and the like "analogous to biological evolution" and "outside of human control"????

I don't know what kind of mutant XML you've worked with, but the XML I've worked with changes under pretty well-defined rules, which are applied consistently by a program, and which are consistently parse-able by a standard parser.

It's far from some mutating, randomly evolving thing which grows in ways we can't know or predict or that suddenly comes up with some new aspects that nobody could ever have predicted.

Seriously, what kind of XML are you working with? I can't reconcile what you say with any of my experiences with it ... you might as well say that computer source code is some alien phenomenon which mutates more like biology and is outside of human control.

I'm not trying to flame you, I'm just completely confused by your assertion. In my experience, XML tends to be normalizable, repeatable, and predictable ... in fact, it's largely supposed to be.

Re:I'm confused (1)

Samantha Wright (1324923) | more than 3 years ago | (#35869414)

Essential to this process is (1) a poorly written software spec handed down from the PHBs that constantly contradicts itself and (2) a bit of a sense of humour. Every company server is a potential Miller experiment, but only some have the right atmospheric mixture.

Re:I'm confused (1)

Bacon Bits (926911) | more than 3 years ago | (#35869826)

That rushing sound you're hearing isn't the winds of April. It's the sound of the joke that just passed over your head.

Hint: Genes have been patented.

Re:I'm confused (1)

gstoddart (321705) | more than 3 years ago | (#35870184)

That rushing sound you're hearing isn't the winds of April. It's the sound of the joke that just passed over your head.

WHAT? I can't hear you. ;-)

Re:I'm confused (1)

2short (466733) | more than 3 years ago | (#35871972)

"I guess that, in Microsoft's world, you can't patent something after releasing it."

Which is indisputably true.

And note that i4i doesn't take the ridiculous position of disputing this foundational concept of patent law. They dispute whether the district court can decide whether they previously released it, or whether they have to assume the Patent Office's previous determination that they did not release it is correct.

So the choice is between admitting MS is right in this one case, versus saying the Patent Office is infallible. A painful choice for a slashdotter, but there you have it.

Re:I'm confused (3, Interesting)

Anonymous Coward | more than 3 years ago | (#35864554)

patents have to be filed within 1 year of the invention being made public

Re:I'm confused (3)

QuantumG (50515) | more than 3 years ago | (#35864934)

In the USA, the only country with such stupidity.. in the rest of the world patents are seen as a way to assure people they need not keep trade secrets.. if someone has already released the secret (by putting it in a product that can be reverse engineered) why would you then give them a patent?

Re:I'm confused (0)

Anonymous Coward | more than 3 years ago | (#35866364)

Patents are not exactly cheap to get. Besides if you release something and no one wants it why patent it.

Re:I'm confused (1)

AkkarAnadyr (164341) | more than 3 years ago | (#35870100)

1968 "But what ... is it good for?" Engineer at the Advanced Computing Systems Division of IBM commenting on the microchip.

Re:I'm confused (5, Informative)

Arguendo (931986) | more than 3 years ago | (#35864586)

Yup. You don't get to release a product to the public and then 20 years later try and go patent it. You've got one year from the release of the product to file for a patent. If not, you are out of luck.

Re:I'm confused (1)

Americium (1343605) | more than 3 years ago | (#35864776)

Perhaps in our new digital age 1 year is far too long. Just file the patent before it comes out, you just have to "file" it, you don't need to receive the patent.

Perhaps for small companies this could be relevant, but any midsize or bigger company (this includes basically every tech company) knows how to file patents, has patent lawyers, and really has no excuse not to file, unless this is exactly what they intended.

Re:I'm confused (1, Informative)

artor3 (1344997) | more than 3 years ago | (#35864902)

Actually, you pretty much describe the system as it exists. The 1 year period the GP refers to is for a provisional patent. You file the provisional patent saying "I'm about to release a cool new invention that does X" and then you have one year to release it and file for a non-provisional patent, which lasts for 20 (or 14 if it's a design patent covering the form rather than the function).

Re:I'm confused (2)

Americium (1343605) | more than 3 years ago | (#35865022)

And if you don't file the provisional patent, but instead do release the product, then you still get a year to apply for a patent.

A provisional patent is NOT required, that's the issue.

Re:I'm confused (3, Informative)

jcorno (889560) | more than 3 years ago | (#35865162)

Actually, you pretty much describe the system as it exists. The 1 year period the GP refers to is for a provisional patent. You file the provisional patent saying "I'm about to release a cool new invention that does X" and then you have one year to release it and file for a non-provisional patent, which lasts for 20 (or 14 if it's a design patent covering the form rather than the function).

No. It's only considered prior art if it's offered for sale in the U.S. more than 1 year before the filing date. See 35 USC 102(b). This has nothing to do with a provisional application.

Re:I'm confused (3, Informative)

Anonymous Coward | more than 3 years ago | (#35865292)

35 U.S.C. 102 Conditions for patentability; novelty and loss of right to patent.

A person shall be entitled to a patent unless - ...

(b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States ...

Re:I'm confused (1)

maxwell demon (590494) | more than 3 years ago | (#35866626)

So in other words, if someone publishes something, I can get a patent on it if I just file it less than one year after publication (assuming he didn't already)?

Re:I'm confused (1)

AJH16 (940784) | more than 3 years ago | (#35867126)

But he would have prior art, so they could invalidate your patent.

Re:I'm confused (0)

Anonymous Coward | more than 3 years ago | (#35868880)

And the trick part is: no it would not.

There is a video online about a lawyer presentation to OSS developers on how to defend from patents (too lazy to look for it now). In the speech he basically states that you cannot claim "prior art" if it took place less than a year before patent application.

Re:I'm confused (1)

2short (466733) | more than 3 years ago | (#35872038)

You'll note that the Coward quotes a section of the law labeled "(b)". Does this make you wonder if there are any other sections?

Re:I'm confused (0)

Anonymous Coward | more than 3 years ago | (#35867076)

argued that i4i began selling a product with the XML editor included a year before it applied for the patent

If you make a new invention and keep it fairly secret, you can take as long as you want to apply for a patent. But once you disclose it to the public, the clock starts ticking and you've only got one year to apply for your patent. It sounds like Microsoft is arguing that i4i's product substantially included what they applied to patent more than 365 days later, and thus counts as prior art to invalidate.

here's a good rule (2)

shentino (1139071) | more than 3 years ago | (#35864516)

Any subject matter that's close enough to infringe a patent AFTER it's been filed should be likewise close enough to count as prior art BEFORE it's filed.

The two standards for each point, whatsoever they may be, have to match, or you'll have predatory patents pulling the rug out from under established projects.

Again, if it's bad enough to infringe, it's also good enough to invalidate.

Re:here's a good rule (1)

Dragonslicer (991472) | more than 3 years ago | (#35866554)

Any subject matter that's close enough to infringe a patent AFTER it's been filed should be likewise close enough to count as prior art BEFORE it's filed.

Are you trying to say that that should be the rule? If so, you're too late, because that already is how it works. The only difference between something infringing and something being prior art is the publication date.

Re:here's a good rule (1)

shentino (1139071) | more than 3 years ago | (#35866688)

Is it really that way in practice?

What with the standards of proof and whatnot?

Considering there's now a case in SCOTUS regarding this very issue I wouldn't be so quick to draw any conclusions.

Re:here's a good rule (1)

Dragonslicer (991472) | more than 3 years ago | (#35867052)

You're right, the standards of proof can make it a little fuzzy. I'd have to check and see exactly how that fits in. I do know that the process is the same to show both prior art and infringement; to show that something is invalidating prior art, you show that it would infringe the patent, and then point to the publication date.

For once I would agree with Trump (0)

Anonymous Coward | more than 3 years ago | (#35864572)

Judge, you're fired.

Judges and/or Justices? (0)

G3ckoG33k (647276) | more than 3 years ago | (#35864602)

Judges and/or Justices?

Ah, (3, Interesting)

alienzed (732782) | more than 3 years ago | (#35864754)

software patents. Insanity and greed at their best.

Re:Ah, (4, Interesting)

Anonymous Coward | more than 3 years ago | (#35865422)

I've said it before and I'll say it again. Patents are government issued monopolies, which completely fail at their primary goal of fostering innovation.

Not only do patents discourage the patent holder from continuing to innovate by shifting their opportunity cost analysis away from innovating and towards monopoly maintaining, but they prevent other prospective innovators from engaging in progressive collaboration, building off of what those before them have done. --And the real salt in the wound, they even prevent the innovations, that DO get developed, from helping society as much as they could, since the monopoly creates an inefficient level of production.

I honestly don't know how they are still seen in such a favorable light. Democrats should be against them, since patents tend to favor big business. Republicans should be against them, since republicans should be capitalists and believe in a free market; free from government intervention and monopolies. People who don't affiliate with either party should just straight-up be smart enough to figure this out on their own...

Re:Ah, (2)

Kijori (897770) | more than 3 years ago | (#35865558)

Can you provide any proof for the claim that patents "completely fail at their primary goal of fostering innovation"?

Schumpeter thought that patents encouraged innovation (Capitalism, Socialism and Democracy), Kenneth Arrow thinks they encourage innovation (e.g. 'Allocation of Resources for Invention'), the WTO thinks they encourage innovation (e.g. TRIPs), the FTC thinks they encourage innovation ('To Promote Innovation: The Proper Balance of Competition and Patent Law and Policy'), the US Courts think they encourage innovation (e.g. CSU, L.L.C. v. Xerox Corp.), the European Commission thinks they encourage innovation (e.g. DG Comp Guidelines on the application of article 82; Microsoft Decision (2004)), and the European Courts think that they encourage innovation (e.g. Magill;IMS Health;Microsoft).

Now I'm not saying that an anonymous poster on Slashdot can't be right when all those people and organisations are wrong, but you have to provide a little more evidence to back up your assertions.

Re:Ah, (0)

Anonymous Coward | more than 3 years ago | (#35865756)

Can you provide any proof for the claim that patents "completely fail at their primary goal of fostering innovation"?

Can you prove that it's going to rain in 2012?

As to your list of agencies, you have to remember that there is a concentration of benefits and dispersion of costs operating here. The players that want patents are well funded, well organized, and have highly active lobbying efforts.

Re:Ah, (0)

Anonymous Coward | more than 3 years ago | (#35865892)

Yes, patents encourage innovation, but only when they are applied to ACTUAL innovation. Our system today is not about protecting one's investment in research and development, rather it is used almost exclusively to shut competitors out of the market place, or to use as a legal threat to keep competitors from harassing you. The standards for getting a patent should be much, much tougher. If they were, there would be much less debate about the validity of patents after the fact and the whole patent system would be stronger for it.

There are many other faults with the patent system... If the patent system is to foster innovation then certain practices, such as patent camping, should be curtailed. If you are the recipient of a patent then the legal requirement for maintaining it ought to be similar to trademark. Either you manufacture a product utilizing the patent with in a reasonable period of time after filing, our you must demonstrate an active effort to market that patent at fair and reasonable rates. Failure to do one or the other ought to be grounds for abandonment of the patent and its entry into the public domain.

Back to the standards issue though, there should be an advisory group to the USPTO composed of companies and individuals skilled in the associated art that can provide a reasonable assessment of the novel, and particularly the non-obvious requirements of patent filings. The USPTO is completely ill-equipped to handle the task that is their charge. You cannot possibly work 8x5 processing patents and stay current enough in the art to be able to accurately assess what constitutes non-obviousness to someone reasonably skilled in the art, it just isn't possible.

The other thing they need to do is make it a criminal offense to knowingly apply for a patent on something that is plainly not patentable. There is no inhibition against abuse of the system, but it's lotto-time if you can sneak one through, especially with the current standard for review. I'm not talking about simply a failure to perform due-diligence rather actual premeditation, but time and time again we see these patents being issued on things that absolutely are plainly obvious and it is plainly obvious that the filers were simply trying to capitalize on someone else's business and efforts, or being used via concealed relationships to interfere with another business. That, without question, stifles innovation. Software development is damn near impossible for an individual inventor today because every obvious outcome of standard synaptic functioning on the part of a programmer has been filed as a friggin' patent, with the vast majority of them being granted.

The fundamental concept of patents is sound, even with respect to software in very limited circumstances. But the system as it is implemented today is malevolently insane. The fact that a plainly disqualifying circumstance for the granting of a patent is not allowed to be considered in a patent review is, with apologies to those who are offended by this word, completely $#@$#$ retarded.

And for the record, I hate Microsoft with a passion. But they are absolutely correct on this one from a policy standpoint (though I have no idea about the merits of their arguments on this particular patent).

Re:Ah, (1)

TheRaven64 (641858) | more than 3 years ago | (#35865916)

You cite a lot of authorities, but no actual evidence. I can find countless examples of patents harming innovation, going right back to Watt using patents to stifle competition on steam engines (using very similar tactics to modern patent trolls). What examples can you cite where patents have actually encouraged innovation? The only examples that come to mind for me are where the existence of the patent has forced people to work around the patent (e.g. Marching Cubes) and come up with better approaches than the original.

Re:Ah, (1)

gtall (79522) | more than 3 years ago | (#35865956)

Drugs. I will be the first to admit that Big Pharma has misused drug patents. However, no drug company is going spend the billions it takes to get a drug developed and through approval (it used to take about 10-12 years and only a small fraction of promising compounds actually turn out to be useful) without patent protection. And even after the drug gets approved, sometimes the deleterious side effects do not show up until the ambulance chasing lawyers have been properly briefed leading to years of legal fights.

Re:Ah, (1)

TheRaven64 (641858) | more than 3 years ago | (#35866016)

Lots of supposition, but all that I see is an example of patents protecting profits, not encouraging innovation. On the contrary, lots of drugs are protected by perpetual patents where they file patents on subtly different techniques that make it impossible to create generic versions of the drugs even after the patents have expired. Meanwhile, a significant number of pharmaceuticals are developed in university labs, funded by various governments. Patent-free drugs (like asprin, for example) are still manufactured and are profitable, so there would be no shortage of companies willing to produce them. You could replace pharmaceutical patents with something like a 4-year monopoly on sale of the drugs in question by the company (or consortium) that paid for the FDA approval process.

Re:Ah, (1)

rwv (1636355) | more than 3 years ago | (#35866490)

Patents on high-cost-to-develop products are not evil. The university labs you cite are likely patenting their major inventions and milking them through licensing deals to fund future research (which correctly spurs innovation rather than stifling it because it correctly separates research businesses from manufacturing businesses. Innovation is stiffed when it comes from companies that have no intention to sell it or license it (i.e. strategically keep it out of the market). In general, though, companies don't allocate resources towards "high-cost-to-develop" products to keep those products out of the market.

Meanwhile, patents on easy-to-develop innovations are dumb. A way of storing credit card and shipping information in a database so users can make purchases with 1-click? Yeah, I'm pretty sure Amazon's patent was invalidated/overturned, but it was a clear example where patents shouldn't apply. User interface patents, in general, are dumb. They usually come about because somebody realizes "so-and-so interface sucks" and then they spend ten minutes figuring out how to improve the "so-and-so interface". Ten minutes of work shouldn't be granted a patent, but the "obviousness test" never seems to get applied for most (easy) patents (or if it does, the "testers" are not adequately trained to do their jobs). This leads to software companies building patent arsenals. It also leads to patent troll companies who want to get as many patents as possible so they can sue the pants off the companies who actually do want to put innovative products into the market.

It wouldn't bother me if the only change to the patent system was to (1) attempt to measure the "cost-of-development" for every patent and to (2) dismiss any patent lawsuit from companies who own patents that they haven't brought to the market, licensed to the market, or attempted to bring to the market. After five or ten years I *bet* they'll find that the majority of patent troll lawsuits fit into the "low-cost-to-develop" category, and then they can evaluate whether further changes are needed.

Re:Ah, (1)

david_thornley (598059) | more than 3 years ago | (#35868872)

For drug companies, profits do encourage innovation. This will happen whenever the invention can't be used without a long certification process, or other serious preliminary costs.

One really expensive part of drug development is getting it approved by the FDA or corresponding agencies. This involves clinical trials and such. Since not all drugs turn out to be safe and effective enough to go to market, getting one drug on the market requires several such studies.

Without drug patents, there would be no incentive to go to the expense of FDA approval, since competitors could produce it immediately without incurring the certification costs. This means that, no matter how many promising-looking drugs would be found in other research, they'd never make it to market.

Yes, the system is abused. Yes, Big Pharma had obscenely big profits, last I looked. Yes, there are other ways to work this, but they're also abusable. I really don't have a better idea than some form of drug patent to encourage innovation in pharmaceuticals.

Re:Ah, (1)

2short (466733) | more than 3 years ago | (#35872214)

"You could replace pharmaceutical patents with something like a 4-year monopoly on sale of the drugs in question by the company (or consortium) that paid for the FDA approval process."

You want to give companies that develop new drugs the exclusive right to sell the drug for a limited time, as an alternative to patents?

Re:Ah, (1)

TheRaven64 (641858) | more than 3 years ago | (#35872584)

No, I want to give companies that pay for the certification of drugs a time-limited monopoly, not companies that invent them. That way, there's no incentive to sit on an invention for 20 years until your monopoly on the old drug runs out - one (or more) of your competitors can equally easily finance the certification.

Re:Ah, (1)

Kijori (897770) | more than 3 years ago | (#35866620)

You cite a lot of authorities, but no actual evidence. I can find countless examples of patents harming innovation, going right back to Watt using patents to stifle competition on steam engines (using very similar tactics to modern patent trolls). What examples can you cite where patents have actually encouraged innovation? The only examples that come to mind for me are where the existence of the patent has forced people to work around the patent (e.g. Marching Cubes) and come up with better approaches than the original.

I'm not sure I really understand your objection to citing authorities rather than "evidence", or indeed the distinction you are drawing. Any evaluation of the positive or negative impact of patent legislation must be based on some combination of research, economic models, and theoretical discussion. I find the suggestion that a few examples provided by a normal Slashdotter like me would be more convincing than a consensus of recognised experts who provide reasoned analysis a little odd.

That said, I will try to answer your post.
The difficulty with trying to provide examples of the success of patents in encouraging innovation is that the idea of an example, by its very nature, requires a small-scale, case-by-case approach. This is, however, at odds with the justification for patents. The rationale behind patent law starts from the fact that innovation is desirable for society, but that since intangible, intellectual goods cannot be controlled in the same way as physical goods, it is difficult to extract value from them; in economic terms they lack appropriability. Patents attempt to provide that appropriability on the basis that companies will be encouraged to invest money in research and development if they can enjoy monopoly profits over the inventions that result from this. It is important to note that what this is not saying is that a monopoly is justified on an individual, case-by-case basis; instead the grant of a monopoly over the specific innovations is justified by the incentive effect that it has on the industry as a whole.

With respect, the difficult in reconciling the arguments made by the original poster and you comes from the fact that you are adopting as a starting point to your analysis a different position to that taken by IP analysts. The position you take, I think, is essentially ex post facto; starting from the fact of invention you ask why patents are justified. In contrast the argument justifying patents starts ex ante from the position that inventions are desirable, and research and development are required in order to lead to invention, so there is a need to incentivize research and development. This is then the function of patents. The difficulty in reconciling these analyses is illustrated well, I think, by your reply to the child post, where you say "all that I see is an example of patents protecting profits, not encouraging innovation". You are of course correct: the patents are protecting profits, which is undesirable as it reduces competition and increases prices for consumers. This is recognised by those justifying patent laws; the argument is simply that from an ex ante position the laws remain desirable. Who would invest hundreds of millions of dollars in research that might not lead anywhere if when they were successful other companies who did not have R&D costs to defray could copy their invention and sell it for the marginal cost of production? Without patents there would be no monopoly on these products - but a substantial number of these products would not exist. If it is accepted - as it is by the majority of modern economists - that innovation increases consumer welfare more than a decrease in the price of existing goods then a time-limited monopoly is justified if it leads to new inventions.

Re:Ah, (1)

dwandy (907337) | more than 3 years ago | (#35867600)

so there is a need to incentivize research and development.

If you start with this (incorrect) position, then of course patents seem necessary.

Who would invest hundreds of millions of dollars in research...

The simplest answer is that you don't need to spend hundreds of millions of dollars if you do incremental improvement -- which is only possible if there are no patent protections. The patent system itself makes itself appear necessary. The simplest example of this is the inherent differences between how Linux (and most open source) is developed in contrast with MS operating system. By incrementally making small changes and releasing often Linux as surpassed Windows in terms of quality etc.

...could copy their invention and sell it for the marginal cost of production

There is a cost to copying which may not be as high as the original, but it is non-zero. Also, if you are the one innovating you will have the lead in market; during this time you must continue to innovate to maintain your lead. Your continued innovation will leave you at the front while others lag. But that's a lot more work than relying on government monopolies.

but a substantial number of these products would not exist.

Pure conjecture. But I will grant you that some products we have today might not exist in a non-patent world if you agree that in our patent-world there are products we could have and don't because of patent issues. Whether we are better or worse of as a result is purely imaginary. I suggest we are worse off as necessity is the mother of invention; so any product with a need that can't be met today due to patent is a loss to us.

While I have not read the original posts you reference, WTO, FTC, US Courts, EuroCommish, and EuroCourts are not agencies I would trust for original research.
So I see your Schumpeter and raise you a Boldrin & Levine [ucla.edu] ; the research and studies they quote and use seem to strongly indicate that there is no gain by giving monopoly protection. And that's actual in numbers, not hypothesis or theoretical discussions.

patent filings (1)

ProfBooty (172603) | more than 3 years ago | (#35868282)

This doesn't inherently mean more innovation, but the number of patent filings is up over the past 15 years or so.

Re:Ah, (0)

Anonymous Coward | more than 3 years ago | (#35869432)

I agree that the mess we've made out of the patent system has completely discouraged me from ever pursuing the development of my inventions. I have designed several things over the years that would benefit society however, I refuse to go any further because all it will do is line someone else's pockets. I am not a rich man.
I am disgusted by the greed and refuse to present my ideas to anyone because as soon as I do $$$$ cha ching and I will end up no more wealthy than I was before. Not very patriotic? Sorry, the behavior of corporate America is not patriotic.

Trying to figure out i4i patent. (2)

bongey (974911) | more than 3 years ago | (#35864800)

From their website http://www.i4i.com/x4w.htm [i4i.com] . Seems an program that edits binary files /text files would be prior art including my favorite editor http://www.vim.org/ [vim.org] .
  • Open binary file
  • Load into some internal metadata format for processing, ie image editor, text editor shit almost anything.
  • Transform back to original format

Code folds would be another example.

Prior Art? (1)

falconcy (1082517) | more than 3 years ago | (#35864928)

I seem to remember a product from Bluestone which was released at Fall Internet World in 1999. I seem to recall it had an XML Editor in it. Surely this is Prior Art. http://www.internetnews.com/dev-news/article.php/234781/Bluestone-Releases-Visual-XML-11.htm [internetnews.com]

Re:Prior Art? (1)

meza (414214) | more than 3 years ago | (#35866426)

The patent in question, US patent 5787449, was filed on June 2 1994 so that is the date you would have to beat.

So let me get this straight... (1)

penguinman1337 (1792086) | more than 3 years ago | (#35864998)

MS is lobying against software patent law? Did I wake up in bizzarro world this morning?

Re:So let me get this straight... (0)

Anonymous Coward | more than 3 years ago | (#35865048)

Only when it's convenient to them are they against it. You'll see them talking about how "necessary" patents are when they're trying to kill Android, for instance.

Calm down! (0)

Anonymous Coward | more than 3 years ago | (#35865408)

It's only when it hurts them. Otherwise "we are going to defend our intellectual property!!!"

Re:So let me get this straight... (1)

Anonymous Coward | more than 3 years ago | (#35866226)

Microsoft isn't arguing against software patent law - it's arguing that a preponderance of evidence should be the standard of defence against infringement.

Since they have much more money than most of their oppoonents they can almost always win the preponderance of evidence standard. It is much harder to defeat a smaller company with a patent if the infringer has to show clear and convincing evidence instead of a preponderance of evidence.

It seems the big companies are supporting this because it means that they make agreements with one another and then destroy all the little companies patents using the easier predonderance of evidence standard.

Please remember the three E's of Microsoft
Embrace, Extend ..... Extinguish

Re:So let me get this straight... (1)

PPH (736903) | more than 3 years ago | (#35868668)

You didn't wake up. You're dreaming and your cat is sleeping on your face.

Re:So let me get this straight... (1)

shutdown -p now (807394) | more than 3 years ago | (#35870442)

Most big IT companies do, actually. Google and Apple are in the same boat. If you watch patent-related court cases, you'll often see all of those file amicus curae briefs in favor of weaker patents. The reason is that, between big corps, patents are not particularly useful, since they usually have large portfolios, so if you sue you just get sued back over something else. On the other hand, big corps are the ones first targeted by actual patent trolls (a "patent troll" is a company that owns a patent solely for the purpose of earning money by licensing it and/or suing over it, without producing any actual product; i4i is not a patent troll, even if their patent is silly), and in cases where that happens it can be hard to fight back, because someone who's not producing anything is immune to even the most extensive patent portfolio.

So, for the most part, the existing patent regime is not good for big companies. They get all the expenses of maintaining a large patent portfolio largely so that they can defend themselves against any other big competitors (and they have to grow theirs, under the assumption that other players also do; and you have to have some parity for "MAD"). And then they also get the expenses of dealing with patent trolls; e.g. Microsoft paid $500M to Eolas in damages, and then later an unspecified amount as part of the settlement.

Also, despite the popular conspiracy theory, smaller fish are not a threat to big guys that's significant enough to promote patents just for the sake of adding another barrier to entry - there are numerous other ways which are less expensive.

Patents (0)

Anonymous Coward | more than 3 years ago | (#35865076)

I don't have a problem with software patents per se.

The criteria for validity of any patent should simply be as follows:

1) Must be a truly novel invention or application

2) Must not be imminently obvious given the state and pace of technology at the time of invention.

If you didn't invent auctions and you didn't invent the internet then you shouldn't be able to patent something as simple as running auctions on the internet.

Re:Patents (1)

Doc Ruby (173196) | more than 3 years ago | (#35866130)

Software patents do not promote progress in science or the useful arts. There is no legitimate basis for issuing someone a monopoly on the business done by a piece of software. It's open competition that promotes that progress with software.

Patents, copyrights and other prohibitions on free speech were compromised for centuries by the limits of 1700s commerce. That basis for compromise is gone. The compromise should be largely eliminated, except where it is still actually necessary.

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Patents are for Lawyers, Not Inventors (2)

Doc Ruby (173196) | more than 3 years ago | (#35866120)

If they push patent examination further up into the Supreme Court, they will ensure that only the richest corporations can benefit from the patent system. Which is more important to the richest corporations than any other aspect of the patent system.

It's already set up so that practically any assertion can be documented enough to be patented through a patent "examiner". The patent system now requires that any serious question be tried in a patent defense appeals court, the first time that a judge with any real experience in patents and inventions makes the decision. Which already favors richer corporations, rather than mere inventors. Microsoft and other corporations that trade their equity in stock markets based on government issued monopolies ("patents") want an expensive legal process, that only they can afford, to protect their entire patent business from surprising new entrants.

They want complex and lengthy legal processes to protect their patents. They've got it. And as only lawyers and their sponsoring corporations get to argue about how much more wrangling is part of the process, they'll get ever more of it.

Because actual inventors are the enemy of these incumbent monopolists.

Exec summary. (0)

Anonymous Coward | more than 3 years ago | (#35866148)

Your highness, we don't like being target of patent trolling; we just enjoy being the patent trolls ourselves.

---

Even in the remote hope of an enlightened sentence which invalidates software patents in totum, one can be absolutely sure M$ lawyers will afterwards defend attacking Linux is an entirely different matter. Such is the nature of the scorpion.

What's the catch? (2)

starfishsystems (834319) | more than 3 years ago | (#35868658)

The only plausible reason why Microsoft would go out of its way to reduce patent protections is because the existing "clear and convincing evidence" protection is not in its interest. Given Microsoft's huge patent portfolio, that can only mean that it has greater concern for weakening other patents than it has for protecting its own. Why would that be?

Now we get into speculation. I can imagine two complementary reasons why Microsoft would initiate this course - and remember, Microsoft is not defending itself in court here, it's bringing this action on its own initiative. One reason could be that Microsoft is not producing its own inventions as fast as it could raid others. That's the motive. The other reason is that patents would be more expensive to defend if the law were more ambiguous. Microsoft is big enough to wear out most of its opponents in patent court. That's the means.

Stay classy, Microsoft.

Re:What's the catch? (1)

Blakey Rat (99501) | more than 3 years ago | (#35869750)

Or maybe Microsoft hates patents as much as any other software company, and the only reason they have such a large portfolio themselves is (rightly) to defend themselves against the likes of Eolas?

I mean, I don't like how US healthcare works, but I still have health insurance. You'd come by and tell me it's impossible for me to support healthcare reform, unless there's some crazy conspiracy.

Re:What's the catch? (1)

starfishsystems (834319) | more than 3 years ago | (#35871198)

Or maybe Microsoft hates patents as much as any other software company, and the only reason they have such a large portfolio themselves is (rightly) to defend themselves against the likes of Eolas?

That's not a credible explanation. The evidence contradicts it. Microsoft systematically uses patent threat against open source, among other targets. It used OOXML to ensure that document standards would be encumbered by its patents. So clearly it's not the only reason, as you claim it is.

You're also arguing that poor Microsoft has to use patents to protect its inventions? Well, but surely that's what patents are for. It's a legitimate reason, and we can't hold that against Microsoft. On the other hand, it doesn't provide any sort of exoneration. If you look at the record, you can't fail to notice that Microsoft finds itself in court a lot. A lot. Some of that is vexatious litigation, no doubt, but it would be irresponsible for you to suggest those cases are representative. Usually, Microsoft has gotten itself in trouble by cutting things a bit too fine. It earned that reputation by its egregious conduct.

You'd come by and tell me it's impossible for me to support healthcare reform, unless there's some crazy conspiracy.

No, actually, I'd do nothing of the sort. I'd leave the hyperbole to you.

Re:What's the catch? (1)

2short (466733) | more than 3 years ago | (#35872844)

Seems a lot simpler than that to me:

Microsoft (like many others) pursues their own self-interest. They decide what outcome they want based on what's good for them. They don't consider whether it is good for the world. So one would expect them to sometimes take a reasonable position by chance. Just deciding everything MS favors must be bad is an easy metric, but not very helpful.

This is a tough call (1)

MobyDisk (75490) | more than 3 years ago | (#35870026)

In principle, it should be difficult to overturn a patent. If a patent merely had a 50/50 chance of holding-up in court, then they become nearly worthless. That gives less protection to inventors. The point of issuing the patent is firmly assert that this is an invention.

In practice, the patent office is not doing their job. They are issuing garbage patents and not re-examining them. But is the appropriate solution to take the power away from that office? Are we so sure that the courts and juries are better judges of the validity of a patent?

The patent office should be the most qualified entity for determining the validity of a patent. But that isn't something the courts can address. That is up to Congress who established and administers that office.

<rant>
It seems to me that we have many government offices failing to do their jobs. We have monopolies everywhere (oil companies, phone company consolidating, cable companies buying media componies) and the DOJ and FTC are not intervening. Police departments are in constant scandal (I live in Baltimore, so maybe I am biased by our local police.) We have a patent office that issues patents for everything with the word "on the internet" in the summary. We have a DHS who spends millions of dollars on airport bomb-sniffing machines before even testing to see if they work. Congress can't cut more than 1% of the budget even though the interest payments will eclipse our ability to pay it back in the next decade.

I think the legislating and executive branches are failing at administering the country.
</rant>

say what? (1)

slick7 (1703596) | more than 3 years ago | (#35870942)

I question the Supreme court for the questioning, NONBFN

Patent disarmament? (1)

pclminion (145572) | more than 3 years ago | (#35871870)

I sometimes wonder if the bigger companies secretly wish they could reduce the number of patents that both they and their competitors hold. Having a bunch of patents makes you a formidable enemy to anyone who doesn't have any, but when two big patent holders go up against each other it's more like nuclear cold war. Do both sides really want this, or do at least some people in the upper echelons secretly wish that everything could simmer down a bit?
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