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Why No War Over MS's Android Patent Shakedown?

Soulskill posted more than 2 years ago | from the cry-havoc-and-let-slip-the-patent-attorneys dept.

Android 174

jfruhlinger writes "When challenged directly by Oracle over Android intellectual property, Google has proven itself a feisty opponent. So why is it sitting back and letting Microsoft shake down OEMs over its claims to own patents that Android infringes? A disheartened Tom Henderson thinks it's because Microsoft has been smart to go after the vendors rather than poke at Google directly. Still, he wonders when Google will get into the fight." Glyn Moody thinks Google should join the fight as well.

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174 comments

Perhaps the patents are legit, valid patents? (5, Interesting)

Anonymous Coward | more than 2 years ago | (#36725170)

Why is no one mentioning the possibility that M$'s patents might be legit, novel patents that don't cover something frivolous? That would be a damn fine reason to license the patents.

Re:Perhaps the patents are legit, valid patents? (-1, Troll)

Moryath (553296) | more than 2 years ago | (#36725244)

Given that every patent Microshit's gotten in the past 20 years has been the result of patent-slamming and abuse of the system?

So why is it sitting back and letting Microsoft shake down OEMs over its claims to own patents that Android infringes?

Probably, Google is sitting back because there is an "undisclosed term" in one of the patent-sharing contracts between Google and MS that nullifies the contract if Google goes to court. As long as Google hangs the developers out to dry, Microsoft won't target Google directly or rescind the agreement.

Re:Perhaps the patents are legit, valid patents? (2)

LordLimecat (1103839) | more than 2 years ago | (#36725402)

Given that every patent Microshit's gotten in the past 20 years has been the result of patent-slamming and abuse of the system?

Surely a statement that bold requires a source.

Re:Perhaps the patents are legit, valid patents? (2)

S.O.B. (136083) | more than 2 years ago | (#36725962)

Surely a statement that bold requires a source.

A source? On Slashdot????

You're kidding, right?

Re:Perhaps the patents are legit, valid patents? (4, Insightful)

zill (1690130) | more than 2 years ago | (#36726026)

Extraordinary claims require extraordinary evidence, unless, of course, you are bashing Microsoft on Slashdot.

Re:Perhaps the patents are legit, valid patents? (0)

GooberToo (74388) | more than 2 years ago | (#36726408)

The fact he used the word "probably" is extremely significant in spite of the fact it went completely over your head. It means he's putting forth opinion and conjecture based on the fact that such agreements are extremely common practice. That doesn't make his statement any more true but it does make for an extremely viable, common place explanation.

Contrary to one of your other replies - your reply is typical slashdot.

Re:Perhaps the patents are legit, valid patents? (1)

LordLimecat (1103839) | more than 2 years ago | (#36726538)

He also said "every patent", so his full statement is that it is likely that EVERY patent is invalid. Once again, it is a lot more than harmless conjecture, its straight up mindless bashing.

Re:Perhaps the patents are legit, valid patents? (1)

GooberToo (74388) | more than 2 years ago | (#36726604)

Perhaps you should learn to read and place things in proper context. Re-read what he said. The only thing which has been completely invalid thus far has been your replies.

Seriously, re-read what he said and then place adjusting your trolling in accordance with context. His first statement was clearly hyperbole. Big deal. Grow up. His next statement was in regards to a different comment. You nicely conflated the two and then trolled.

Re:Perhaps the patents are legit, valid patents? (0)

Anonymous Coward | more than 2 years ago | (#36726934)

Perhaps you should learn to read and place things in proper context. Re-read what he said. The only thing which has been completely invalid thus far has been your replies.

Seriously, re-read what he said and then place adjusting your trolling in accordance with context. His first statement was clearly hyperbole. Big deal. Grow up. His next statement was in regards to a different comment. You nicely conflated the two and then trolled.

Uhm.. "his first statement was clearly hyperbole. Big deal. Grow up"? Seriously? You have no problem with wild, unsupported, factual wrong claims being used this way in a discussion? Is it because it is directed at Microsoft? You do know that everything Google and Apple have built their success on is stolen from others?

Considering the source... (4, Informative)

Petersko (564140) | more than 2 years ago | (#36726502)

"Given that every patent Microshit's gotten in the past 20 years has been the result of patent-slamming and abuse of the system?"

You've regressed so far that you think misspelling "Microsoft" with the word "shit" in it is either creative, useful, funny, or relevant, so I'll forgive you just being wrong for the rest of your post.

Re:Perhaps the patents are legit, valid patents? (3, Interesting)

postbigbang (761081) | more than 2 years ago | (#36725280)

Yet no one litigates to find out. Why? Imagine trying to invalidate dozens of patents, one at a time. Find out what they are, then find patches around them. How many patents can there be to be used against the Linux-Android kernel?

Re:Perhaps the patents are legit, valid patents? (1)

king neckbeard (1801738) | more than 2 years ago | (#36725354)

Allegedly 42 for just the kernel just from MS.

Re:Perhaps the patents are legit, valid patents? (5, Insightful)

jc42 (318812) | more than 2 years ago | (#36726132)

Allegedly 42 for just the kernel just from MS.

But the main comment about such numbers has been "[citation needed]". MS's patent-violation claims seems to be trade secrets. We can't recode the purported violations, because we don't know where in the code they are and what specific patent they violate. MS won't tell us.

This is part of the "patent troll" concept, and it's why people are classifying MS's patent "agreements" as shakedowns and a protection racket.

Myself, I'd be happy to rewrite any of my code so as to avoid patent and/or copyright violations. As an experienced coder, I can usually come up with several ways to do any particular task. But to do that in a way that violates patents or copyrights, I have to know what they are, and how they violate someone's patent or copyright. This information has become nearly impossible to get from claimants, other than by spending millions of dollars on legal expenses.

The whole "IP" fuss in the US is essentially due to the change in the laws some time back, so that patents can be written in legalese rather than engineerese, making them incomprehensible to anyone but lawyers. And often not even to lawyers, who often respond to questions with "I don't know what that means; we'll have to ask the courts." Again, millions of dollars and many lost years before we get an answer.

Copyright is even more bizarre, with corporations even making copyright claims on nothing at all, or blank lines [thedailywtf.com] . Some time back, when SCO claimed a specific number of copyright violations in the linux code, someone did a bit of grepping, and reported that the number agreed almost exactly with the count of "/*" and "*/" lines in the code. But again, SCO never actually told us which lines were in violation of a copyright, making it impossible to rewrite them so they didn't infringe.

Anyone know a fast, efficient way to find out exactly what lines of code are in violation of some corporation's patents or copyrights? Until we can quickly determine that information, they can continue their protection racket unhindered by legal concerns.

Re:Perhaps the patents are legit, valid patents? (1)

king neckbeard (1801738) | more than 2 years ago | (#36726440)

It is indeed troubling behavior, and it is straight up extortion. Perhaps one solution is to codify something into law that says NDAs can't prevent disclosure of patent numbers that are part of a settlement. That would make invalidating or working around the patents much easier.

Legally preventing another SCO might be a bit trickier, though, but I doubt that a similar threat to the FOSS ecosystem could happen, just because the Unix model of proprietary code with source code widely available doesn't seem to be as common these days.

Re:Perhaps the patents are legit, valid patents? (1)

UnknowingFool (672806) | more than 2 years ago | (#36726856)

I would argue that patents are harder than copyrights when it comes to code as the copyrighted must be registered with the Copyright Office. Patents involve parsing whether your idea is implemented as described in the patent application. SCO stands out as an egregious example of a troll. The case never went far enough for IBM to eviscerate SCO's code comparisons but the fact that the judge threw out 2/3s of SCO's claims because they didn't provide specificity even after multiple orders to do so.

My memory of the details is not clear but I remember that IBM's experts challenged the code comparison because (1) SCO failed to exclude code which were not copyrightable ie the Filration test (2) SCO's comparison often counted a positive as lines that came from different modules and neglected the code in between them and (3) some positives were not remotely similar. It appears to me that SCO was using a very definition of "match". The case didn't go far enough for IBM to destroy SCO's code analysis.

Re:Perhaps the patents are legit, valid patents? (1)

peragrin (659227) | more than 2 years ago | (#36726352)

They aren't after "android" but one of those patents is VFAT.

an extended 30 year old file system, that is the only way to connect multiple drives together across all OS's.

Software patents really are different than others (4, Insightful)

Rob Y. (110975) | more than 2 years ago | (#36726674)

Software patents are a different kind of animal than other patents, and Microsoft's been on both ends of the evil spectrum in this regard.

Software patents are rarely used for simply collecting appropriate royalties on a software 'invention'. More commonly, they're either used to shake down rich companies (like Microsoft, who have been the victims of such trolls) or they're used in an anti-competitive manner (mainly by Microsoft) to punish companies that have the nerve to build successful products without using Microsoft (or Oracle, or...) software.

The VFAT patent is a case in point. Nobody uses VFAT because they think it's a great filesystem. No modern filesystem uses the patented VFAT 'dual-naming' system, but products have used VFAT because that's the easiest way to make products that need to connect to a computer work with 90+ percent of the computers out there. Royalties on VFAT should be struck down based on the non-innovative technology in question (basically a kludge to fix a broken filesystem). They should also be struck down based on their anti-competitive nature. VFAT royalties are a form of illegal tying to a monopoly product. As are any patents on CIFS, or other communications protocols built in to Windows.

But how about a so-called 'legitimate' software patent? In the case of a piece of patented hardware, somebody who wants to use that hardware in their invention will buy the hardware, which would come with a license to use the patent. In fact, they might have to buy the hardware from the patent-holder. There would be a cost involved, but it wouldn't be much more than the cost of the part without the patent license. Now look at the Android patents. There's a patent on displaying text in a web page prior to downloading the embeddded graphics. Leaving aside whether Microsoft actually 'invented' that, in less time than it took to type that sentence, I know how to implement it, using no Microsoft code. And yet Microsoft is charging $5 per unit for phones incorporating this (and a few other similarly trivial) patented inventions. And for a few dollars more, they'll sell you WinMo7, a full-blown platform of which the patented ideas are a negligible part. How about I buy the patented stuff for an appropriate fraction of the full $15 WinMo, and you can keep the rest? The purpose of charging these royalties is to make a free OS cost essentially as much as the Microsoft offering. But setting prices this way is anti-competitive. The Windows (and Office) monopolies already give MS several competitive steps up in entering new arenas where interaction with those products is important. But they want more. They always want more.

Re:Perhaps the patents are legit, valid patents? (4, Insightful)

Insanity Defense (1232008) | more than 2 years ago | (#36725374)

Why is no one mentioning the possibility that M$'s patents might be legit, novel patents that don't cover something frivolous?

Probably due to the words of a Microsoft executive. When Ballmer first started the whole "Linux violates our patents and some one has to pay" campaign people asked which patents precisely. The executive indicated that he wouldn't say as they might be challenged and invalidated. If Microsft is so sure why not tell so it can be fixed?

It is like the whole SCO fiasco claiming that Linux violated their Unix copyrights (which they have now been ruled twice in courts not to own) but they would never say what code it was out of fear that the "code would be replaced".

Both sets lawsuits seem to me to be based on the idea of never letting the alleged infringement be known and fixed so that they can collect eternal tolls based on their unsupported allegations.

Not Sco at all (1)

SuperKendall (25149) | more than 2 years ago | (#36725646)

In the case of SCO though, the claims were obviously absurd.

In this case, careful review by a number of hardware makers has led them to pay Microsoft to license the patents. We may not know exactly what they are using but you can bet the companies paying Microsoft had to have pretty good proof before they simply handed over per-device fees to another company.

extortion doesn't work that way. (0)

Anonymous Coward | more than 2 years ago | (#36725826)

IF they refused, they would be in court for 5 to 10 years.

This would put them into bankruptcy.

Re:Not Sco at all (4, Informative)

NullProg (70833) | more than 2 years ago | (#36726004)

In this case, careful review by a number of hardware makers has led them to pay Microsoft to license the patents. We may not know exactly what they are using but you can bet the companies paying Microsoft had to have pretty good proof before they simply handed over per-device fees to another company.

I doubt that. All the companies that have licensed the patents for their Android devices also ship Windows devices. More than likely Microsoft threatened them over Windows pricing if they didn't agree to the patents. See the monopoly trial transcripts on Microsoft's use of predatory pricing tactics.

The one Android using company that didn't license the patents also doesn't ship any Windows versions. According to Barnes and Noble the patents are weak. See

http://yro.slashdot.org/story/11/04/28/039255/BampN-Responds-To-Microsofts-Android-Suit [slashdot.org]

Food for thought,
Enjoy.

Re:Not Sco at all (1)

kevinmenzel (1403457) | more than 2 years ago | (#36726116)

Of course, for many years after the trial, Microsoft was under considerable scrutiny, so I very much doubt they'd be able to pull off such predatory pricing policies with regards to Android without someone at least saying something.

Re:Not Sco at all (1)

king neckbeard (1801738) | more than 2 years ago | (#36726248)

MS was under close scrutiny for a few years, but by the time the first Android devices were launched, it didn't seem they were watched as closely.

Re:Not Sco at all (1)

JAlexoi (1085785) | more than 2 years ago | (#36726554)

Wha...!?!?! Since when was MS outside US under any supervision? MS did and still do predatory pricing.

Re:Not Sco at all (1)

WelshRarebit (1595637) | more than 2 years ago | (#36726694)

Pretty much all scrutiny (and all anti-trust inquiries) of Microsoft was dropped when George W. Bush took office.

Re:Not Sco at all (1)

JAlexoi (1085785) | more than 2 years ago | (#36726534)

In this case, careful review by a number of hardware makers has led them to pay Microsoft to license the patents. We may not know exactly what they are using but you can bet the companies paying Microsoft had to have pretty good proof before they simply handed over per-device fees to another company.

Do you know what kind of review they did? Either we comply with MS or we loose access to MS Windows and WP7 licenses and face litigation in US.
And in business terms complying with MS is their best option... Though it would really make me, in place of an executive, doubt how MS can possibly be called a partner.

Re:Perhaps the patents are legit, valid patents? (1)

walterbyrd (182728) | more than 2 years ago | (#36725998)

Yep, exactly like the scox-scam that Microsoft financed. Just another case of Microsoft using the legal system to beat up MS competitors with nebulous claims of infringing IP. Like the scox-scam, Microsoft refuses to be specific about exactly what is being infringed.

In the case of SCO though, the claims were obviously absurd.

So how come the case went on for eight years, if the claims were "obviously absurd?" The reason is: the US legal system is borked. MS has learned how to exploit our broken legal system to harass MS competitors.

Re:Perhaps the patents are legit, valid patents? (1)

v1 (525388) | more than 2 years ago | (#36726160)

Isn't there a sort of legal suit you can file to have something confirmed to be legal, to settle the question of whether an action is legal or not, proactively? I forget the name of it, but it seems to be well-suited to depth charging the submarine patents?

Declaratory judgment perchance? (1)

tepples (727027) | more than 2 years ago | (#36726720)

Isn't there a sort of legal suit you can file to have something confirmed to be legal, to settle the question of whether an action is legal or not, proactively? I forget the name of it

Was it declaratory judgment [wikipedia.org] by any chance?

Re:Perhaps the patents are legit, valid patents? (1)

mabhatter654 (561290) | more than 2 years ago | (#36725870)

Ha, ha...
The most common one they sue over is FAT32 on removable media. I'd venture the real reason we're not seeing more pushback is that these OEMS ALSO make Windows phones and other Windows devices. I'd venture MS shows up ready to revoke their license to sell windows (along with the discounts retroactively) which becomes something nasty... Who's willing to be BANNED from selling windows (other than Apple which already has a wide cross license in their pocket) ?

Frankly Google needs to step up and hit Microsoft on these points.

Re:Perhaps the patents are legit, valid patents? (1)

JAlexoi (1085785) | more than 2 years ago | (#36726586)

First they need to put Oracle back in place. Then push though easier patent invalidation, where Microsoft is one of their allies. And then they can use the ease of patent invalidation, to invalidate patents.

Re:Perhaps the patents are legit, valid patents? (1)

walterbyrd (182728) | more than 2 years ago | (#36725878)

Judging from the TomTom case, and the B&N case, I doubt it.

Ballmer has made it very clear that he plans to ruin Linux though patent suits.

This is just business as usual in Redmond.

Re:Perhaps the patents are legit, valid patents? (1)

poetmatt (793785) | more than 2 years ago | (#36725886)

The only person who says this is people who support MS, 100% evidenced by an anonymous comment to boot.

Since when was a software patent legitimate, novel and non-frivolous?

I'd love to see proof of that from any company that exists. Show me a software patent that will last through prior art, because it doesn't exist.

Re:Perhaps the patents are legit, valid patents? (1)

Anonymous Coward | more than 2 years ago | (#36726170)

Here's one I recently came across while researching something... Interestingly, it's currently owned by Google:
http://www.google.com/patents/about?id=MlfIAAAAEBAJ [google.com]

Or a couple of random picks from searching for "software" on Google Patents:
http://www.google.com/patents/about?id=4fqFAAAAEBAJ [google.com]
http://www.google.com/patents/about?id=aYGbAQAAEBAJ [google.com]

Now remember, to show prior art, you have to look at the CLAIMS and find one or more earlier references that knock out each and every element in the claims. The above patents should be easy, they have some of the briefer claims I've seen. Have at it.

Re:Perhaps the patents are legit, valid patents? (1)

JAlexoi (1085785) | more than 2 years ago | (#36726612)

Show it to a mathematician, he'll put them back into place they deserve.

Re:Perhaps the patents are legit, valid patents? (1)

poetmatt (793785) | more than 2 years ago | (#36726854)

why would we care about google's patents? they aren't suing or shaking down anyone.

If you want to take down patents, you should focus on the trolls - interval, microsoft, apple.

Re:Perhaps the patents are legit, valid patents? (0)

Anonymous Coward | more than 2 years ago | (#36725914)

As somebody already asked, if those patents do have merit, why can't Microsoft use them to build a decent OS for smartphones in the first place, and successfully compete against Android with a product rather than with threats of lawsuits?... Eh?

Because they're software patents (0)

Anonymous Coward | more than 2 years ago | (#36726244)

which automatically makes them bullshit.

Re:Perhaps the patents are legit, valid patents? (1)

Sir_Sri (199544) | more than 2 years ago | (#36726302)

And google may not care about the covered technology. The tech in question covers connecting the phone to Windows desktops basically. From googles perspective Android works by itself, if you want to, as a feature to differentiate from competitors, connect to something else, that's your problem.

Not getting involved may keep the price down for everyone too. If MS settles for say 4 or 5 dollars a phone with several different makers that becomes the going rate. If they make a fight out of it MS may demand 15, or simply withdraw the licence at all, and if you risk losing in court you have a serious problem. You might win, but you might not, and not winning would put you out of business.

Re:Perhaps the patents are legit, valid patents? (1)

JAlexoi (1085785) | more than 2 years ago | (#36726634)

I'm pretty sure that winning a case against MS, when you are making Windows PCs will put your PC business out of business.

Equilibrium (1)

Kamiza Ikioi (893310) | more than 2 years ago | (#36726356)

Nobody is mentioning either that Microsoft will never sue Google and risk losing a billion in revenue from shaking down makers. The fact is that makers love this. They pay a fee and get protection. This is what they'd have to do anyways if they didn't use Android. Android is the only really free option, and this fee is certainly better than paying for Windows 7 Mobile and not selling millions of units to boot.

Microsoft is happy, handset makers are happy enough to only pay $15 per phone. And Google doesn't care about Microsoft's little side game, because it effectively keeps MS out of a real phone competitor because the handset makers would quickly countersue and or enter joint deals and kill MS's billion dollar baby.

It's equilibrium. And with everyone fighting Apple which could easily overtake a crippled Android (and I love android to pieces, but they'd get crushed in a single generation of stagnation), it's a lose-lose to go to course with Apple laughing at it all.

Re:Perhaps the patents are legit, valid patents? (2)

Bruce Perens (3872) | more than 2 years ago | (#36726416)

Why is no one mentioning the possibility that M$'s patents might be legit, novel patents that don't cover something frivolous? That would be a damn fine reason to license the patents.

Because that's absurd.

First, they're software patents. I'm sure lots of folks will be willing to trot out the arguments against those if you actually haven't heard them before, but it should suffice to say that such things should not be granted.

Second, because Microsoft does not have much of a history of innovation. I can break that up into pieces: Their software products have in general been follow-ons to other people's software products. Visicalc -> Lotus 1-2-3 -> Excel, for example. They haven't been innovators in either the mobile telephony industry, or its predecessor the PDA industry. Their products were definitely late-runs in those industry.

Third, because they have a well-known history of filing patents on known art.

Re:Perhaps the patents are legit, valid patents? (1)

MrDoh! (71235) | more than 2 years ago | (#36726736)

Current stuff /might/ be legit, so Google tells them to sit tight, works around the patent, next release of android doesn't invalidate those patents, htc/samsung/whoever tells MS 'thanks, but we don't need to license your patents now, so sorry, bye bye"

Innovation. (1)

kakyoin01 (2040114) | more than 2 years ago | (#36725178)

It's what's for breakfast. At least, for Microsoft.

Re:Innovation. (-1)

Anonymous Coward | more than 2 years ago | (#36725304)

But does it have ELECTROLYTES? It's what developers, developers, developers crave!

Something about flying chairs... the year of Linux on (insert popular device here)... how the patent system for software is absurd and should be removed...

Let's not forget ponies, two dozen badly-written posts with goatse links, a comparison about computers, consoles and phones and a Godwin comment for good measure.

No comments for you... NEXT!

Why should FOSS advocates (2)

sessamoid (165542) | more than 2 years ago | (#36725256)

be standing up and crying foul? MSFT is suing largely over patents that have nothing to do with the Linux kernel, but rather the software on top of it, much of which is closed and/or licensed by Google. It's not as if these OEMs are FOSS contributors who do valuable work then contribute it back to the open source community.

Re:Why should FOSS advocates (0)

Anonymous Coward | more than 2 years ago | (#36725318)

It has to do with the fact software patents are bad. Period. I don't think it matters who is challenging a patent. That is a good thing. Of course losing isn't good.

Re:Why should FOSS advocates (1)

Jartan (219704) | more than 2 years ago | (#36725332)

I must admit we don't seem to be getting what we want out of Android. If Google isn't going to use their market share to force a better phone market then it's pointless to care about them losing to MSFT.

Re:Why should FOSS advocates (0)

Anonymous Coward | more than 2 years ago | (#36725366)

be standing up and crying foul?

Yeah, people who like free software should be forbidden from having opinions on anything else. I actually once knew this guy who was an avid Linux user but then I found out that he also opposed clubbing baby seals to death - I mean, what's that got to do with Linux???

Re:Why should FOSS advocates (1)

MightyYar (622222) | more than 2 years ago | (#36725370)

The whole point of patents is to encourage people to share their "secret formula" rather than keep a trade secret that dies with the company/inventor. There is no need for software patents, as anyone with a debugger can see what your "secret formula" is. All you are doing at that point is protecting the interests of the patent holder, which does not exactly benefit society.

Re:Why should FOSS advocates (2)

king neckbeard (1801738) | more than 2 years ago | (#36725408)

I think encouraging the development of said formulas is a bigger concern than disclosure. That said, it doesn't appear that patents have worked well for either or those goals.

Re:Why should FOSS advocates (1)

Anonymous Coward | more than 2 years ago | (#36725602)

There is no need for software patents, as anyone with a debugger can see what your "secret formula" is.

Actually, I'd say that is an excellent reason for why software patents are required. Why invest millions of dollars in R&D if your competitor can simply debug your secret formula and replicate it with no significant investment of their own? Copyright will not help if they, for example, simply rewrite the code in a different language. Not all software inventions consist of simple UI tweaks or IsNot operators. A guarantee of protection means someone will think it's worth investing in that R&D.

And before you say "open source" and "FLOSS" and "free" and "software innovation is cheap", consider that the salaries and benefits of just five MS/Google-level software developers easily goes over a million / year.

I'd say that the bar for patentability should be raised, but this has already been mostly true ever since KSR in 2007.

Re:Why should FOSS advocates (1)

king neckbeard (1801738) | more than 2 years ago | (#36726034)

Why invest millions of dollars in R&D if your competitor can simply debug your secret formula and replicate it with no significant investment of their own?

The question is whether or not an investor can get a return that justifies that investment and encourages further investment in the time it takes another company to reverse engineer. If you can without patents, than the investment is justified without patents. Also worth considering is whether or not software patents do anything in practice that actually results in more investment in actual research, and the overhead costs dealing with and avoiding patents bring to an innovator.

Then why not separate trivial UI tweaks... (1)

Rob Y. (110975) | more than 2 years ago | (#36726138)

Not all software inventions consist of simple UI tweaks or IsNot operators

...and yet software patents are being granted on simple UI tweaks as well as true innovations costing millions in R&D. Instead of using the rare cases of the truly novel to justify the stupid, obvious stuff, why don't you make the case for changing the patentability laws to weed out the junk? Perhaps by dictating how much of a license fee can be charged. How can the patent office or Congress be okay with allowing royalties of 30-100% of the cost of WinMo7 for 'innovations' that involve a few lines among hundreds of millions of lines of code? Seriously, some attempt should be made to guarantee that licensing costs for software patents reflect the importance of the feature to the overall software product that contains it.

Re:Then why not separate trivial UI tweaks... (0)

Anonymous Coward | more than 2 years ago | (#36726918)

...and yet software patents are being granted on simple UI tweaks as well as true innovations costing millions in R&D. Instead of using the rare cases of the truly novel to justify the stupid, obvious stuff, why don't you make the case for changing the patentability laws to weed out the junk?

It's easier said than done. Here's the problem: the law has to codify the guidelines on which an examiner can declare something not novel or obvious, because otherwise it comes down to an examiner's subjective opinion, and that would be a very, very arbitrary system. Even then examiners get a lot of leeway in what they consider obvious, and it is rather arbitrary. You get guys that rubberstamp anything and you get guys that deny everything and guys that don't understand anything and all kinds in between. But these laws cannot be arbitrary, and to have a semblance of a sane system, those guidelines are required. With those guidelines in the picture, it just becomes a matter of gaming the system, with lawyers tweaking claims language this way and that until it becomes very difficult for an examiner to deny it without breaking the guidelines.

A blanket ban on, say, UI features may help, but blanket bans are a dangerous thing. Who's to say that there won't be a UI feature that is not truly novel and non-obvious? A blanket ban would be unfair to whoever did invent it and asks for a patent. As a trivial example, tabs in browsers blew my mind when I first saw them (I think it was in Opera)... it's a minor change, but undeniably a better user experience, and in the "everything is a window" paradigm of those days, I'd say it was kind of non-obvious. I don't know if I would deny a patent on that if it was filed back in the 90s...

Perhaps by dictating how much of a license fee can be charged.

I agree... but licensing is a very case-specific business with millions of edge cases, and I think it'd be a mistake for courts to try to regulate what should ideally be a private matter between two parties. As an example, the PageRank algorithm could be implemented in a few KLOC, but the millions of LOC in the rest of Google (circa 2001) would function poorly without it. Hence the value of those few lines is disproportionate to the rest of the code.

It is a hard problem...

Re:Then why not separate trivial UI tweaks... (1)

king neckbeard (1801738) | more than 2 years ago | (#36727152)

Your specific case on a blanket ban doesn't seem to suggest that it's that important to not do so. AFAIK, Opera didn't get a patent on tabs, nor did it actually invent tabs, even in browsers. It doesn't appear that anyone has successfully managed to wield a patent on tabs against others, either, so it seems like we managed to get tabs without patents.

Re:Why should FOSS advocates (1)

alen (225700) | more than 2 years ago | (#36725660)

the benefit is that it creates an incentive to invent or code something that does a better job than the current patent. if someone patents an algorithm then it creates an incentive for someone else to code a better one.

unless of course you work for an asian company that does nothing but sell cheap commodity products with other's IP

Re:Why should FOSS advocates (0)

Anonymous Coward | more than 2 years ago | (#36726334)

That's certainly one of the ideas, but it doesn't work because patents are written to cover "doing X", so if you come up with a better way to "do X", you're still doing X. If you don't believe me, see mpeg1-layer3 and Fraunhofer and whether or not they believe anyone can write a non-infringing encoder (or was it decoder.. whatever). Think it's even in their licensing FAQ. (the answer is "No", according to them you can't and if you try you'll be litigated). Hence Vorbis, which has also lived under this "you're violating 30 patents but we're not going to tell you which and we'll litigate any day now" threat.

Re:Why should FOSS advocates (0)

Anonymous Coward | more than 2 years ago | (#36727066)

The whole point of patents is to encourage people to share their "secret formula" rather than keep a trade secret that dies with the company/inventor. There is no need for software patents, as anyone with a debugger can see what your "secret formula" is. All you are doing at that point is protecting the interests of the patent holder, which does not exactly benefit society.

I'm sorry, but how long would it take to crack open a cotton gin and devise a manufacturing process to produce them? And don't even mention patenting the process, that would get even more heckles here. There's more to patents than outing secrets, and I'll argue that there are more potential secrets to be lost in software than a physical product! The only reason someone would care to crack open a debugger and hunt for new algorithms is if they were known to perform better. Have you thought of all the unproductive time hunting for and proving "new" algorithms that have been developed but unpublished?

How is that better than "here's how our new method works - compensate or innovate"??

Google is not stupid is why! (0)

Anonymous Coward | more than 2 years ago | (#36725326)

With Microsoft shaking down the likes of Samsung, LG et all why not just wait for them to take Microsoft to the legal cleaners?
Besides the stupid patents are all operational functionality code. None really do anything that could be considered patentable anywhere except perhaps Texas...or Nevada and then only if you spend millions bribing judges and officials!

Google has minimal patents (0)

Anonymous Coward | more than 2 years ago | (#36725348)

MS has been into the smartphone game nearly as long as Palm, I'm sure they have a plethora of patents while google is relatively new to the game, therefore they have little to defend themselves with. Is anyone actually surprised by this?

Re:Google has minimal patents (1)

bberens (965711) | more than 2 years ago | (#36725904)

I think Google probably has built up a decent portfolio via acquisitions, but you're right, probably not nearly the size of some of the other players in the game.

Not worth it to Google. (1)

Jason Pollock (45537) | more than 2 years ago | (#36725406)

Android is a loss leader, and not worth a lot to Google. Google's patents are probably in their core business, search and advertising. Since a lawsuit would result in settlement and cross licensing, Google's patents are worth a lot more for keeping Microsoft out of that core business than saving HTC $5-15 per handset.

Re:Not worth it to Google. (1)

zill (1690130) | more than 2 years ago | (#36726298)

Bingo. You hit the nail on the head. If Google attacks Microsoft's patent pool, they should expect counter-attacks from Microsoft. Why take the risk if there's no benefits? Google profits exactly $0 from each handset sold.

The obvious is being missed: (5, Insightful)

gcnaddict (841664) | more than 2 years ago | (#36725414)

I'm going to leave two points for consideration:

1) as the first AC mentioned, the patents may be legitimate. In discussions about MS patent litigation, I've noted that Microsoft actually does a good job of leveraging patents over which it has ownership rather than simply letting them sit in a bank, so there's a good chance they're leveraging their options because Microsoft may actually be using these patents in Windows Phone 7.

2) Google needs a foothold in the mobile market. Even if this means OEMs have to pay Microsoft for patents Microsoft owns, I figure Google won't care simply because this means Google still has a foothold as both an advertisement platform and an application platform, which is something Google would be hard-pressed to challenge just for the sake of challenging royalties which manufacturers are willingly paying. After all, these OEMs have their own teams of lawyers, and these lawyers likely see something we don't, suggesting to us on the outside that Microsoft may actually have a valid claim to the patents in question.

Re:The obvious is being missed: (0)

Anonymous Coward | more than 2 years ago | (#36725740)

Foothold? Come on. Google's Android OS is the biggest player in the smartphone field today, from a 3 year delay for against the other main players. That's fucking phenomenal considering the massive momentum and media coverage Apple have engineered. The fact Android isn't just a small player, and by overtaken the darling of the tech industry, has many players absolutely shitting themselves. Not because they're doing rather well, but because Google does not need it at all.

Re:The obvious is being missed: (1)

gcnaddict (841664) | more than 2 years ago | (#36727236)

I didn't say they need to get a foothold. I simply said they need one. This includes both getFoothold and retainFoothold.

Despite their claim of Do No Evil (3, Insightful)

OverlordQ (264228) | more than 2 years ago | (#36725420)

So why is it sitting back and letting Microsoft shake down OEMs over its claims to own patents that Android infringes?

Because Google is a Business. Litigation costs money. Business don't like spending money until they have to.

Re:Despite their claim of Do No Evil (1)

Dog-Cow (21281) | more than 2 years ago | (#36725614)

Companies don't like spending money. Period.

Re:Despite their claim of Do No Evil (1)

walterbyrd (182728) | more than 2 years ago | (#36726102)

Companies don't like spending money. Period.

Ridiculous. Companies will spend money, when in it's their interest to do so.

Besides, if google did fight back, you would probably say that proves Google is evil.

Re:Despite their claim of Do No Evil (1)

idontgno (624372) | more than 2 years ago | (#36725684)

More to the point, given a choice between spending money, or letting someone else spend money, business will choose the latter. So Google has no immediate incentive to jump in when Microsoft shaking down Android OEMs is covering the need.

The indirect effect, OEMs backing away from Android because Google isn't indemnifying them or rescuing them in their hour of need, is (A) not as economically sensible if the OEM has already settled with MS and now has a license to the patents in play, and (B) not the kind of thing you do instantly, especially if your Android products are the most popular ones you produce and you're not otherwise in great trouble.

Note that Nokia pretty much had to be at the brink of failure before it sold its soul to Microsoft, and the platforms it abandoned were crufty and confused (Symbian) or immature and experimental (Meego). It made a play comparable to buying into Android, except it was Microsoft's equivalent (Win7P) and came with a sizable bribe.

Re:Despite their claim of Do No Evil (1)

bberens (965711) | more than 2 years ago | (#36725984)

MSFT will be in a position of wanting Android to be successful in the market, since their license fee for Android is exactly the same as the fee they charge for a license of Windows Mobile.. more revenue with no labor (aside from a couple lawyers). MSFT will be the most profitable person in the mobile phone operating business.

Re:Despite their claim of Do No Evil (1)

walterbyrd (182728) | more than 2 years ago | (#36726134)

More to the point, given a choice between spending money, or letting someone else spend money, business will choose the latter. So Google has no immediate incentive to jump in when Microsoft shaking down Android OEMs is covering the need.

It's not as if companies, like Samsung, are too poor to fight their own legal battles. Why does Google need to step in and help a multi-billion dollar, international, mega-corp?

Re:Despite their claim of Do No Evil (2)

SpinyNorman (33776) | more than 2 years ago | (#36725816)

Yes, but that's a bit too simplistic.

If Microsoft's moves were harming Android adoption, the time to act would be now. If Google/Android loses handset manufacturer allegiance then it might be hard/impossible to regain it later.

Of course the reverse is true too - if Microsoft's shakedown of the handset manufacturers doesn't appear to be having much affect on Android usage, then why should Google care?

Another consideration is that Android truly might be infringing on Microsoft's patents, in which case there's not much short-term alternative to paying one way or another.

The reason is very simple (0)

Anonymous Coward | more than 2 years ago | (#36725480)

Google is letting Microsoft collect royalties so that when they do go after them, they can get a huge settlement deal. Defending patents is a very costly and time-consuming business. So it doesn't surprise me that Google is biding its time.

Re:The reason is very simple (-1)

Anonymous Coward | more than 2 years ago | (#36725586)

Not sure you understand how these things work...

Slashdot: telling you how to think since... (0)

Anonymous Coward | more than 2 years ago | (#36725552)

This is such a twisted and decietful summary/title, I threw up in my mouth a little...

Writing on the Wall (1)

milbournosphere (1273186) | more than 2 years ago | (#36725596)

This is a sign of how out of touch Microsoft is. Outside of their lucrative enterprise market, it seems their best solution for making money is to simply troll with their patent portfolio. The numbers I can find seem to show that the moneys they're collecting from these 'that's a nice android you got there, I'd hate to see something happen to it' payments outnumbers their revenues from Windows phones. That's just sad. Microsoft needs to be careful. There's a time bomb hidden in their business strategy, just waiting to go off. The same thing happened to IBM; they managed to re-invent themselves. Will Microsoft be able to do the same thing?

Re:Writing on the Wall (0)

Anonymous Coward | more than 2 years ago | (#36725810)

You must be one of the greatest business minds of our time! Why are you wasting your time and energy tinkering on your Ubuntu laptop, you should be out running a large corporation!

Not their problem (1)

ColeonyxOnline (966334) | more than 2 years ago | (#36725666)

It's not Google's problem. Getting themselves involved has the potential of making matters worse for not only themselves but the OEM's as well.

Like one who seizes a dog by the ears is a passer-by who meddles in a quarrel not his own.
Proverbs 26:17

I have no idea but.. (1)

papasui (567265) | more than 2 years ago | (#36725678)

For the sake arguement lets suppose, Microsoft who has been making phones a lot longer than Google, actually has legit patents. The first Windows phone came out in 2003, and pocket pc goes back to 2000. Perhaps Google has completely disregarded said patents and Microsoft has them by the balls.

Re:I have no idea but.. (0)

Anonymous Coward | more than 2 years ago | (#36726654)

since google isn't getting targeted i assume these are hardware patents, windows phones probably already include the licence for the patents.

MS friendly pop-media would have a field day (4, Insightful)

walterbyrd (182728) | more than 2 years ago | (#36725790)

If Google were to ever fight back, the Microsoft friendly pop-media would have a field day.

The Microsoft friendly pop-media would scream, and cry, and carry-on, non-stop about how Google is abusing the legal system to preserve google's monopoly.

This sort of thing happens all the time.

Remember the big fuss that made when legal action was taken against Cisco for GPL violations? "The foss folks are a bunch of hypocrites! They complain when scox tries to protect it's IP rights, but they're the first to file a lawsuit against anybody else!"

How about Microsoft accusing Google of being a patent troll when Google tried to buy Nortel?

How about all the privacy accusations against Google, backed by Fackbook's biggest investor?

Of course Microsoft has a huge problem with any sort of monopoly. Not just the Google monopoly, remember Microsoft's recent attacks against IBM's monopoly - the TurboHercules scandal?

My all-time favorite was the massive fear campaign about the horrors of having one company (Netscape) controlling the critical browser market! Rags like "Infoworld" carried on about that for months. At the time, Netscape had a monopolistic 70% of the browser market - oh the horror! After Microsoft defeated Netscape, and MSIE went on to control about 90% of the browser market (at one time); the same ms-friendly rags saw no problem with that.

Microsoft loves to scream, and cry, about Microsoft competitors, who do the same sorts of things that msft does; even though msft is about 100X worse.

Fighting it does not make sense (0)

Anonymous Coward | more than 2 years ago | (#36725958)

Look, whatever else they may have done, Microsoft did have a huge hand in building the personal computing market from scratch, to put it mildly. It is inevitable that they would have a ton of patents on their technology, and since mobile computing is an extension of PC technology, it is inevitable that there will be a lot of overlap. Not to mention that they were also an early player in the smartphone market.

Now, given the size of their portfolio, there will be of course some trivial patents, but undoubtedly there will be some very good patents as well. Does it really make sense to fight them and try to show that *all* of them are invalid? Or try to prove that you don't infringe on them, when most things are done in certain ways pretty much because Windows did it that way and Windows was a de facto monopoly and everyone has been doing them that way, but you want to make a case saying "No, we don't do things that way"? It's a lot easier to just admit you're infringing and license the whole damn portfolio.

Most h/w makers just passing along costs... (1)

rkhalloran (136467) | more than 2 years ago | (#36726060)

I think they'll let the hardware companies take the initial charge, and jump in only if it looks like it's hurting overall adoption. The phone & tablet makers are just adding the MS danegeld to the bottom line, and Android takeup doesn't seem to be hurting much for it.

Barnes & Noble, seeing the Nook as their enabler to sell you e-books ("Gillette strategy"), and so wanting to hold down their unit cost, refused to sign Microsoft's NDA, called out the patents in their suit as obvious, and explicitly accused them of trying to strangle Android adoption via patent trolling. I'm tempted to run out and buy a Nook Color just to thank them for flicking off the Monopolist.

SCOX(Q) DELENDA EST!!

Re:Most h/w makers just passing along costs... (0)

Anonymous Coward | more than 2 years ago | (#36726582)

You could do worse than getting a Nook Color.
That tablet is nice and boots from micro SD cards without any difficulty (microSD boot has priority over internal OS).

The original ROM is ok also. It has Flash, Youtube videos, the browser can switch User agent to choose the desktop or mobile version of a website.T

The physical device is enjoyable, good screen, nice 7 inch form factor, 512MB of RAM etc.

They will lose (0)

Anonymous Coward | more than 2 years ago | (#36726080)

Google won't get into the fight because they know they will lose. They fucked up big time and are happy to let the manufacturers take the fall.

Legit? (0)

Anonymous Coward | more than 2 years ago | (#36726326)

MS has been making mobile OS's for years, and they have patented everything they could. I am sure Android tromps on a huge number of these. You can fight software patents in general, but my guess is (have not studied) that by today's patent laws, this shake down is legit.

lots of possibilities (1)

Nite_Hawk (1304) | more than 2 years ago | (#36726426)

Just off the top of my head:

- They don't want the OEMS to run to google every time someone threatens them with patent lawsuits.
- Why stop Microsoft from pissing all over the OEMs? Does Google need OEM goodwill more than they would like Microsoft to have OEM ill-will?
- Maybe they want something from the OEMs to help them out that the OEMs aren't willing to agree to.
- Perhaps they don't want to escalate a patent war with Microsoft.

The relevant question is: (2)

drolli (522659) | more than 2 years ago | (#36726618)

Why does oracle not go after the manufacturing companies? I think they would all settle immediately. They would even plainly buy J2ME to put it on the device.

I suggest (1)

Gonoff (88518) | more than 2 years ago | (#36726872)

Google removes any Imaginary Property from the Android released to the manufacturers and then makes it available in the Marketplace..

I wouldn't advise anyone to bet any money on them doing this though...

Selling patents == BAD (1)

StripedCow (776465) | more than 2 years ago | (#36727016)

Selling patents is inherently wrong, because it gives one company a monopoly over the IP that is being sold, while from the perspective of society, nothing is gained by the transaction.

In fact, it can be said that IP law and competition law are inherently in conflict in this sense.

I am just wondering why nobody seems to notice or acknowledge this conflict.

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