The future of software patents
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| Author | Content |
|---|---|
| skelband Jul 06, 2011 2:01 PM EDT |
I don't know if it is just an impression from the current flurry of new articles on the subject, but Microsoft does seem to be whipping up a big firestorm around the Android patent issue. I'm sure that they would prefer to cook all these deals up quietly but it's not working that way. There certainly does seem to be a lot of negative commentary around the issue and it might backfire on Microsoft if it becomes a big negative story for them to be embroiled in in the future. The whole software patent issue seems to be coming to a head. Perhaps we will see some movement on this in the future, although I'm not holding my breath. |
| Fettoosh Jul 06, 2011 2:38 PM EDT |
Quoting:I'm sure that they would prefer to cook all these deals up quietly but it's not working that way. I am not sure I agree. The negative commentary that has been going on for a while doesn't bother MS that much. It has been successful in neutralizing it periodically and its consumers are still locked-in tight. In my opinion, I believe MS is using a scare tactics to curb Android and give a chance to its Mobile Phone to get a foothold, which it hasn't been able to do for a while now. So, it seems to be in MS interest to create as much publicity as possible and also to enhance its position down the road for a stronger law suits. |
| JaseP Jul 06, 2011 5:24 PM EDT |
Well, imagine you're a 6th grader, and you start shaking down 2nd graders for their lunch money,... They'll all back down and pay. Now imagine that you try it with the biggest 5th grader, who's not bigger than you, but knows karate, and he calls over 2-3, of his buddies from karate class,... Now, it's going to get really interesting... M$ better watch out who they push around. Eventually they'll get a beat-down,... old-school playground style. |
| Bob_Robertson Jul 07, 2011 6:31 PM EDT |
> Eventually they'll get a beat-down,... old-school playground style. Impatiently tapping foot, waiting... |
| jdixon Jul 07, 2011 7:03 PM EDT |
> Eventually they'll get a beat-down,... old-school playground style. They already did, at least by proxy. Their hired bully got ran out of town on a rail by IBM. They're being far more careful now. |
| jacog Jul 08, 2011 6:01 AM EDT |
Google is the target of the bulk of Microsoft's current efforts, indirectly by targeting Google's customers. While Google's is probably not obligated to protect its customers from bullies, I think it behooves them to at least try to do just that. The idea is to bully mobile device makers out of shipping Android, and I can see that working, unless some big brother intervention happens. |
| dinotrac Jul 08, 2011 7:29 AM EDT |
Don't know, but I get the impression a lot of folks around here are stuck in 1998. Yes, Microsoft has wads of money and can hire tons of lawyers. Any company with those resources is dangerous, but... This latest action demonstrates exactly how desperate Microsoft is. They can't gain their own foothold in the market, so they sue. Let me ask you this: If Microsoft REALLY had some snazzy technology buried in all those patents they're waving -- Don't you think they could actually make some noise in the mobile phone space? The good kind, that is. |
| tracyanne Jul 08, 2011 8:02 AM EDT |
@dinotrac. Exactly |
| JaseP Jul 08, 2011 2:24 PM EDT |
Without a doubt, Dino... Their patent portfolio is a house of cards built on sand... But realise that between now & their eventual re-invention of themselves or death, they are hell-bent on taking down everyone around them. They're like a terminal patient who decides it's a good time to get all destructive, smoking, drinking, partying, "honky-tonking" (PG version of what I was going to say, a word similar in meaning to one rhyming with "boring"), because they have nothing to lose. It's that wounded animal psychology that makes them dangerous. |
| dinotrac Jul 08, 2011 3:24 PM EDT |
@JaseP - And as long as people capitulate, it's a good strategy. Drives me nuts, though. I really wish that Google would get its dander up and ride to the rescue, maybe with a product defamation suit or some kind of indemnification. Here's an interesting thought: Wouldn't the Chromebook have to use some of that same offensive infringing technology those Android phones are using? Maybe Microsoft's just working up to Google, but...honestly, their track record in actual litigations is awfully poor. People forget that they lost the federal antitrust suit, lost to Stax Electronics, lost one to Novell, and settled out of court (with big bucks to Novell) on another. You don't have to match their resources either -- although you do have to have resources sufficient to the task. |
| JaseP Jul 08, 2011 4:50 PM EDT |
M$ has some very ridiculous patents, so they could always find something to sue over. They could sue over the off switch, the OS shutdown patent they have... |
| jdixon Jul 08, 2011 4:58 PM EDT |
> You don't have to match their resources either -- although you do have to have resources sufficient to the task. Yeah. While the legal fees are nothing to sneeze at, any reasonably sized company can afford to keep a case in court forever as long as the decisions don't impact their revenue stream. It's the individual and small company that can't manage it. Unfortunately, most companies decide it's cheaper to settle than to fight. They've obviously forgotten their Kipling, if they ever knew it: http://jeffersonian.therealgunguys.com/danegeld.html There are benefits to a true liberal arts education, though such a thing is hard to find nowadays. |
| dinotrac Jul 08, 2011 5:27 PM EDT |
@jdixon - I am genetically incapable of appreciating a liberal arts education. Fortunately, it seems that a conservative arts education is identical. |
| cr Jul 08, 2011 5:40 PM EDT |
@dino: Aside from emphasizing Whistler and Turner instead of Picasso and Pollock. Are we off-topic yet? |
| cr Jul 08, 2011 5:51 PM EDT |
jdixon wrote: Their hired bully got ran out of town on a rail by IBM. They're being far more careful now.Plus Red Hat, whose suit for declarative judgment helped derail their railroading effort. I'm hoping to see one or more of these handset makers collude with Google to do a preeemptive declarative-judgment strike like that, to reduce the cloud of patent FUD to hard facts. So far, though, it seems, all of the handset makers are too used to paying MS-tax to seriously consider being Google's stalking horse. Pity, that. |
| cr Jul 08, 2011 6:01 PM EDT |
Come to think of it, all Google has to do is put out to market one more limited-edition Google/Android handset, nominally to serve as standard-bearer for a defined feature-set. As long as it's limited-edition, it's not a true competitive threat to the other handset makers, but then Google has a dog in that fight and can sue for declarative judgment themselves. Or do I have the legal logic wrong there, Dino? |
| BernardSwiss Jul 08, 2011 6:28 PM EDT |
"conservative arts education" Thank-you, Dino. My oxymoron collection has been languishing, neglected on an unconnected hard-drive, for lack of new specimens... I guess I'll have to dig it out of the closet again... :-P |
| dinotrac Jul 08, 2011 7:03 PM EDT |
@cr - I'm not really sure what would be required from Google. They aren't required to make a phone in order to infringe -- or, more pointedly -- to be accused of infringing Microsoft's patents. So far as I know, Microsoft hasn't accused Google of infringing any patents, but, by inference they have, and, Google is the one who developed Android, so, if phone companies using Android infringe Microsoft patents, Google must. About the only exception to that I can imagine is if Microsoft doesn't claim any violation by Android, but that running Android on a phone violates a patent. That's a bit far-fetched. |
| Fettoosh Jul 08, 2011 8:34 PM EDT |
I don't know what type of arrangement Google has with the phone manufacturers, but they don't seems to be paying Google any compensation for using Android. So why should Google defend them against MS? Android is gaining more popularity every day, and MS hasn't been able to do anything to derail it so far. Google is very pleased with that, so why should they create trouble for them selves when they don't need to? Why should they disturb a good going trend, especially if there is no compensation for losses? I thing they are working of a smart strategy. When Android is more dominant and Google is making substantial amount of money to make it worth while to face MS, then it would make much sense to face and stop MS patent shenanigans and get compensated for the losses. At this time, I believe MS doesn't want to sue Google just yet, and Google doesn't want to face MS just yet either. We just have to wait and see. |
| jdixon Jul 08, 2011 10:34 PM EDT |
> Are we off-topic yet? Check the link before deciding whether the poem is off topic or not, then decide whether a true liberal arts education would include exposure to the ideas expressed in the poem. |
| dinotrac Jul 08, 2011 10:41 PM EDT |
@fettoosh -- There actually is a reason for Google to seek a declaratory judgment, presuming that's what their lawyers would advise. In patent law, you can infringe in a number of ways, but you can't make the person whose patents you infringe sue you. However, so long as you have been served notice of the patents (which is why they mark physical things with patent numbers), you are liable for damages from the time you started to infringe. In theory, Microsoft could just sit back and let its potential award grow and grow and grow. A declaratory judgment is a way to stop that from happening -- you get the patent declared invalid, or get a determination that you aren't infringing it. |
| cr Jul 08, 2011 11:32 PM EDT |
@jdixon: Hm, you could be right. It's been years since I last went Kipling, and the Kipple then was "The Forbidden Song" from the short story "Easy As ABC". I just know that gelding Danes is bound to make a lot of Danish women unhappy. [edit: fixed story title] |
| jdixon Jul 08, 2011 11:56 PM EDT |
> It's been years since I last went Kipling Suffice it to say that the ideas expressed in the poem bear directly on whether a company should pay a royalty or fight the case in court. |
| Fettoosh Jul 09, 2011 10:00 AM EDT |
@Dino, So MS has no reason to rush into suing since waiting would possibly increase the reward. In addition to that, it presumably is getting fees from various vendors. So why should it sue Google now? There is no reason to rush. On the other hand, Google is not suing for some reason(s). What could those reason(s) be? Here are some thoughts a) They are certain they don't infringe on any of MS disclosed patents, or they can invalidate them, or some how they can work around them when the time comes. Keep in mind that MS didn't disclose all the patents they believe are being infringed upon by Android and they can't claim they notified Google about all of them. b) Google are too busy now they prefer to leave it until it is more appropriate for them. c) Since MS is getting compensated by the various vendors, Google wouldn't be liable for the same infringements. Are they correct? d) Since Android is based on Linux, which is Free software, is Google liable for any infringement in the Linux code, or Linux is? And, since Google is giving Android for free, would they still be liable for damages? We know Google can afford the best lawyers possible, do you think they are making the biggest mistake ever? I certainly hope not. |
| dinotrac Jul 09, 2011 12:16 PM EDT |
@fettoosh -- It could be that they would like to see another case go to the Supreme Court -- the most recent SCOTUS decision was not very encouraging to holders of software patents. For the same reason, Microsoft would probably like to lock up all the deals it can berfore a decision comes out that devalues its portfolio. |
| Fettoosh Jul 09, 2011 3:39 PM EDT |
Quoting:It could be that they would like to see another case go to the Supreme Court Good point Dino. And it does stink watching MS having a field day coercing everyone and anyone. |
| JaseP Jul 11, 2011 9:45 AM EDT |
Quoting: In theory, Microsoft could just sit back and let its potential award grow and grow and grow. Laches, Dino,... Laches. If they sit on their hands too long, they just may be considered "unclean." There are limits to predatory procrastination... |
| gus3 Jul 11, 2011 11:01 AM EDT |
"Sitting on their hands" is just one missing letter away from "dirty hands". |
| JaseP Jul 11, 2011 11:17 AM EDT |
Completely unintentional (cough, cough, NOT, cough). |
| dinotrac Jul 11, 2011 11:31 AM EDT |
JaseP -- Have you ever heard of laches being applied when there are unexpired patents? |
| JaseP Jul 11, 2011 11:40 AM EDT |
Yes... http://patentlaw.typepad.com/patent/2005/09/appeals_court_a.... |
| dinotrac Jul 11, 2011 11:55 AM EDT |
@JaseP - I stand -- informed. Thanks. However, that was a pretty extreme case, and the opinion makes clear that laches will not ordinarily be available as a defense against patent enforcement. Still -- good to know. I'll bet there are still a few "old rules" patents out there that might have had the benefit of an abusive application process. |
| JaseP Jul 11, 2011 12:01 PM EDT |
Quoting: However, that was a pretty extreme case,... Yeah, but so is your hypothetical fact pattern... M$ doesn't seem to be waiting it out though,... They appear to be pretty offensive (this pun, also intended). |
| dinotrac Jul 11, 2011 12:38 PM EDT |
@JaseP -- No, they're not. My guess is they're not in a hurry to face somebody who can fight them off, though. |
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