Why I was wrong about Microsoft (by Glyn Moody)

[zridling]

We all make mistakes. Glyn Moody discusses how Microsoft is going after the little guys to cut down on competition. Four-minute reading time.
http://www.h-online.com/open/features/Why-I-was-wrong-about-Microsoft-1218798.html
______________
The Microsoft-created features protected by the patents infringed by the Nook and Nook Color tablet are core to the user experience. For example, the patents we asserted today protect innovations that:

• Give people easy ways to navigate through information provided by their device apps via a separate control window with tabs;
• Enable display of a webpage’s content before the background image is received, allowing users to interact with the page faster;
• Allow apps to superimpose download status on top of the downloading content;
• Permit users to easily select text in a document and adjust that selection; and
• Provide users the ability to annotate text without changing the underlying document.

This latest trend to devise and deploy legal strategies against open source seems to me to represent an admission on Microsoft's part that it can no longer compete on technology. Instead, the dinosaurs have decided that it's time to play really dirty – and nothing is dirtier than enforcing bad monopolies using worse laws.

[hpearce]

So because the patents protect things you consider innovative, you consider MS bad ... If they were protecting what you considered useless patents, then that's OK with you.
Basically this article is merely an emotional piece by someone who doesn't like who or what microsft is taking legal action against,

There seem to be few arguments of real merit.

[Josh]

+1 @ hpearce

[f0dder]

Haven't read the article, but the items zridling lists in his post... is stuff like that patentable? That's batshit insane.

[40hz]

I really look forward to the day Microsoft ends up in court trying to enforce such patents. Because that is the day they'll see those blatantly BS patents ruled invalid.

Which is why Microsoft will never allow a case like that to proceed to an actual trial.

They're not that stupid.

Unfortunately.  

[tomos]

I really look forward to the day Microsoft ends up in court trying to enforce such patents. Because that is the day they'll see those blatantly BS patents ruled invalid.

...but if they're so BS why do they even get given a patent in the first place

[f0dder]

I really look forward to the day Microsoft ends up in court trying to enforce such patents. Because that is the day they'll see those blatantly BS patents ruled invalid.

...but if they're so BS why do they even get given a patent in the first place

Because the patent system is utterly broken. FUBAR, mate.

[mouser]

I really look forward to the day Microsoft ends up in court trying to enforce such patents. Because that is the day they'll see those blatantly BS patents ruled invalid.

...but if they're so BS why do they even get given a patent in the first place

Because in the modern age we live in, patents are never meant to be used by having a court rule that a competitor can't produce a product.  They are used as devices for extorting money and threatening financial ruination from legal fees.

Whether a patent will hold up in court is almost irrelevant -- they are vehicles for revenue generation -- just get yourself a patent and then go hunting for someone you have the pretext to sue and demand some money from them to leave them alone.  They will inevitably reply that your patent is silly or doesn't apply to them, at which point you simply ask "would you rather spend 5 years and a fortune in legal fees to roll the dice and try to prove that in court, or would you rather just give me a bucket load of money right now and i'll go away."  Of course you don't say it like that, you have your lawyer write up some nice fancy language that everyone knows means the same thing.

[zridling]

Witness the recent "patent" by Google of their logo doodles. How is that even patentable? (is that a word?) But they did it only because Apple was threatening to patent the "idea" of doodles. Double facepalm time. As mouser says, it's whoever has the most lawyers wins, not the best ideas.

PS: Every single big tech company in the world is guilty, but they're all standing in a circle pointing fingers at each other.

[app103]

Keep in mind that there is another practice used by tech companies that involves a completely different kind of patent trolling than you are used to hearing about. Or maybe you are hearing about it but don't really know what is going on behind the scenes.

Usually it is done by the big guys but more and more the little guys are starting to do it too, especially if they have a great marketing department that can generate a lot of interest in their products.

It goes like this:

People at the company that are employed to check for patents on the technology they are about to develop come across a number of existing patents. Instead of informing their developers of the technology that a prior patent exists and they have to do it a different way than originally described, they are given a copy of the patent and they comb the description looking for ways to improve their product, by copying any useful feature mentioned in the patent.

Sometimes the process involves their idea people combing through patents looking for things they could use, to snap together, to create a killer product. They start with a blank slate and let the patents do half the thinking for them.

Normally they would need to contact the patent owners and work out a licensing agreement, which would involve paying the patent owner money.

But instead, the company fails to contact the patent owner, fails to pay any licensing fees, and lets the patent owner come after them. They figure they will have a good 2 years before that happens and they are forced to start paying.

Before it ever gets to court, they settle out of court and enter a license agreement with the patent owner and it never goes to trial.

Final cost for the company is actually less than 2 years of licensing fees they would normally have had to pay if they did things the right way.

[40hz]

^ How's that old saying go? Something like: it's easier to ask for forgiveness than it is to get permission- and a plea for forgiveness is also much more likely to be granted?

Looks like somebody found a business use for it's wisdom.  

[zridling]

Even Google agrees on how how horked the patent system is:
http://googleblog.blogspot.com/2011/04/patents-and-innovation.html

"The tech world has recently seen an explosion in patent litigation, often involving low-quality software patents, which threatens to stifle innovation. Some of these lawsuits have been filed by people or companies that have never actually created anything; others are motivated by a desire to block competing products or profit from the success of a rival’s new technology. The patent system should reward those who create the most useful innovations for society, not those who stake bogus claims or file dubious lawsuits. It's for these reasons that Google has long argued in favor of real patent reform, which we believe will benefit users and the U.S. economy as a whole.

"But as things stand today, one of a company’s best defenses against this kind of litigation is (ironically) to have a formidable patent portfolio, as this helps maintain your freedom to develop new products and services. Google is a relatively young company, and although we have a growing number of patents, many of our competitors have larger portfolios given their longer histories."

[40hz]

Like f0dder said: FUBAR, mate.

[Edvard]

^ How's that old saying go? Something like: it's easier to ask for forgiveness than it is to get permission- and a plea for forgiveness is also much more likely to be granted?

Looks like somebody found a business use for it's wisdom. 

That nugget of wisdom has a pretty good pedigree, actually:
http://en.wikipedia.org/wiki/Grace_Hopper

[zridling]

Microsoft wants different standard in patent fight
http://news.cnet.com/8301-10805_3-20051900-75.html#ixzz1IvADkQau

"Microsoft filed a legal brief late today arguing that the court shouldn't require it to offer "clear and convincing evidence" to overcome the traditional presumption that patents approved by the U.S. Patent and Trademark Office are valid."

Oy.

[Carol Haynes]

I find all this fairly hilarious.

MS themselves are one of the biggest patent infringers of all time:

DOS was a rip off (literally ripped off and tweaked for a rush job for IBM)
Windows as we know it was an amalgam of ideas from Mac, GEM, RiscOS and Xerox operating systems. Almost nothing that MS have added over the years has had any innovation - generally they steal someone else's idea, claim a patent and then sue the originator on patent infringement grounds if they have the temerity to use their own ideas for commercial gain (or even in not for profit settings!).

Apple are no better - all they have done in latest MacOS is add a skin to an exiting operating system, early versions owe a lot in look and feel to Gem and Xerox

Both of them developed 'style guides' for user interfaces to add consistency to the user interface and not only do neither adhere to their own style guide they end up suing anyone else who uses it on the basis of 'look and feel'.

When are people going to call their bluff and point out that really there is nothing new under the sun.

My only regret is that Alan Turing isn't alive today as he proved mathematically that all computers (however large and complex) are all functionally equivalent to a "Turing Machine". If he had patented it and sued MS and Apple tactics he would now wipe the flaw with all computer manufacturers.

[SKA]

>now wipe the flaw <

You mean "wipe the floor" yes ? <grin>

Ska

[tomos]

>now wipe the flaw <

You mean "wipe the floor" yes ? <grin>

sounds like a Boston accent !! (or somewhere up there)

[40hz]

@tomos:

>now wipe the flaw<?

If it's "Bah-stin" then "fer shaw." 

[mwb1100]

"Microsoft filed a legal brief late today arguing that the court shouldn't require it to offer "clear and convincing evidence" to overcome the traditional presumption that patents approved by the U.S. Patent and Trademark Office are valid."

This sounds to me like it might be a good thing as far as being able to help overturn unworthy patents (and therefore would be something that most software-patent-haters would like), or am I misreading this?  I know that when it comes to legal stuff, the devil is in the details, and the initial appearance of a ruling or law doesn't necessarily indicate the actual effect.

[Edvard]

My only regret is that Alan Turing isn't alive today as he proved mathematically that all computers (however large and complex) are all functionally equivalent to a "Turing Machine". If he had patented it and sued MS and Apple tactics he would now wipe the flaw with all computer manufacturers.

Holy christmas, Carol...
That war positivitably Joycean!

[mwb1100]

My only regret is that Alan Turing isn't alive today as he proved mathematically that all computers (however large and complex) are all functionally equivalent to a "Turing Machine". If he had patented it and sued MS and Apple tactics he would now wipe the flaw with all computer manufacturers.

Holy christmas, Carol...
That war positivitably Joycean!

Wait... I'm a bit Chris-crossed.

[zridling]

My only regret is that Alan Turing isn't alive today as he proved mathematically that all computers (however large and complex) are all functionally equivalent to a "Turing Machine". If he had patented it and sued MS and Apple tactics he would now wipe the flaw with all computer manufacturers.

You go girl!  
________________________

This sounds to me like it might be a good thing as far as being able to help overturn unworthy patents (and therefore would be something that most software-patent-haters would like), or am I misreading this?  I know that when it comes to legal stuff, the devil is in the details, and the initial appearance of a ruling or law doesn't necessarily indicate the actual effect.

Close. Microsoft's response brief attempts to rebut i4i’s (a small Toronto company) claims that Microsoft should be held to the “clear and convincing” standard. Microsoft wants the court to apply the lower preponderance of the evidence standard, which would make it easier to invalidate i4i’s claims. (i4i filed a suit in 2007 claiming that Microsoft violated one of its patents covering the way Microsoft used XML in Word.) Meanwhile, Microsoft keeps losing and filing for more appeals.

Realizing that the ruling will set a precedent under which tech companies will have to live for years, Microsoft rivals and partners, such as Google, Apple, Intel, HP, and Facebook among others, filed a friend-of-the-court brief supporting Microsoft. Their fear is that a ruling against Microsoft will encourage more small companies to come out of the woodwork, pushing patent claims against large companies.

The irony is that if you go back and read the original Glyn Moody article, Microsoft itself is suing open source companies left and right over the most ridiculous patents, such as SELECTING TEXT and a SUPERIMPOSED DOWNLOAD BAR. Microsoft can't have it both ways.

[40hz]

DOS was a rip off (literally ripped off and tweaked for a rush job for IBM)

Actually, wasn't DOS Based on QDOS by Seattle Software Products?

IIRC Microsoft purchased perpetual legal rights to that OS in 1980 to serve as the basis for the OS that IBM had contracted Microsoft to provide for its PC. For this, Microsoft paid a one-time fee of $50k to Seattle Software, but didn't tell them ('ostensibly because Microsoft was under an NDA and therefor barred from discussing it) what they wanted it for. Tim Paterson, the founder of Seattle Software and author of QDOS, went to work for Microsoft the following year.

In retrospect, that became one of the shrewdest business deals ever made. But hardly a financial ripoff. $50k was a fairly substantial amount of money back then. Especially in an industry that catered largely to the hobbyist market prior to IBM releasing their PC.

So what about it being a technology ripoff?

Gary Kildall of Digital Research (originally: Intergalactic Digital Research) often claimed that QDOS was "largely lifted" from his operating system CP/M.

Paterson acknowledged he had extensively based QDOS on CP/M, but argued the coding was all his and therefor was a legal functional equivalent of CP/M rather than a copy.  Some preliminary and largely unsuccessful legal skirmishes early on led Kildall to believe Digital Research didn't have a leg to stand on if they went to court. So the widely hinted, and eventually threatened, lawsuit never materialized. No software patent trolling or look&feel nonsense back in those days!

In the 80s, the rule of thumb used to be something like if 80% (or more) of your source code was original, your work was considered original. That was because there was a general consensus that software was developed in an "evolutionary fashion, and therefor (of necessity) tended to "incorporate" elements  (i.e. algorithms,code snippets, standard routines, etc.) which had been previously written by others.

In the 80s, nobody seriously considered software as being copyrightable because it was regarded as a set of instructions rather than a 'creative' or 'literary' work. Instruction sets are not usually eligible for copyright protection.

And software was not considered patentable for the same reason since it was viewed more as an 'idea' than it was the 'expression' of one. Ideas, by themselves, are not patentable.

There was also a very different 'business view' of software back then.

Most PC system software (particularly the OS) had yet to be considered as separate products. It was usually just thought of as an accessory. If you looked at the PC invoices of the time, you'd often see system software and utility disks all lumped together and called something like Accessory-Std. Software Pack with a line price that read: included.

In the 80s, an OS came bundled with the hardware you bought. Mainframes and minicomputers often had complex and expensive support and licensing schedules. But the big selling point for PC was that it came with an OS which was *SOLD* to the customer rather than licensed annually. That was a major paradigm shift for the computer industry. It wasn't till much later that the notion of licensing PC software became the norm. And it was a very hard sell convincing the public (and most courts) that a "shrink-wrap license" you didn't get to read, negotiate over, or personally sign, became legally binding if you unsealed a box. That alone constituted a major breakthrough getting the public to accept that.

Simpler times.