A list of hundreds of patents that Microsoft believes entitle it to royalties over Android phones, and perhaps smartphones in general, has been published on a Chinese language website.
The patents Microsoft plans to wield against Android describe a range of technologies. They include lots of technologies developed at Microsoft, as well as patents that Microsoft acquired by participating in the Rockstar Consortium, which spent $4.5 billion on patents that were auctioned off after the Nortel bankruptcy.
These are the secret patents Microsoft’s patent mafia uses as a club to beat other companies into paying protection money.
Why can’t we get this kind of transparency in the West?
you do… you just need to not be lazy and search
USA
http://www.uspto.gov/patents/process/search/index.jsp
UK
http://www.ipo.gov.uk/p-find.htm
Transparency doesn’t mean everything has to be simplified into a nice headline for you.
So how do we know which patents to search for? You’d think if a company is suing for patent infringement, it should at least reveal what patents are involved.
In the UK you do, I don’t know enough about other systems to say if you do or dont.
A rough step by step to a patent claim;
Claim Form
Defence/Counter claim
Case Management Conference
Disclosure
Experiments
Exchange of fact evidence
Exchange of expert representatives
Hearing
Judgement
Costs & Damages
Obviously, at any point a settlement can be reached. This CAN happen before disclosure takes place.
I guess the trick is that they don’t actually sue, but just threaten to sue to force them into an out-of-court deal.
Such a deal has an NDA about the patents in question, so MS (or whoever) can go to their next victim and do the same.
My question would be: now that the patent numbers are known, can they be circumvented to stop paying MS?
richarson,
You hit the nail on the head, this should be the next question for everyone. And it’s one that microsoft fought so hard to keep unknowable. Now that the patents are narrowed down to a couple hundred, it clears the way for avoiding and/or debunking those patents. That’s still a lot of useless work, but at least a couple hundred patents is something that the android community can feasibly attack now.
I imagine there are already people pouring through the patents looking for prior art. The real question is how many are getting ready to expire, how many are obviously bunk, and how many can be side stepped. That will take some time. You can bet that Google will have people on it though.
Alfman, TechGeek:
Let’s hope Google or some other company/entity (FSF, OIN maybe?) is taking a close look at those patents.
Debunking them via obviousness or prior art would be even better than side stepping them, so thanks for raising that point.
And how do you search the patent database for “which one is Microsoft most likely to sue me with?”
The transparency is not about what patents there are, but about which ones are Microsoft looking to use to skim off the top of other organizations.
Searching for patents you could possibly infringe is the dumbest thing you could possibly do. If you’re a software developer, NEVER EVER do a patent search. Don’t even open the USPTO search page.
If you do, your infringement – and if you’ve ever coded ANYTHING, you infringe upon patents by definition – will become willful.
And that, you do not want.
Wouldnt that logic also now mean that having read the attached article you are also wilful?
Do you have an example of any case where that has been actually acted out?
Sounds a bit like FUD to me.
Edited 2014-06-16 13:49 UTC
It is. All of this is at the discretion of a judge.
To anyone reading, if you’re an engineer and have patent questions contact legal counsel at your job.
It isn’t FUD. If you’ve actively searched for patents and possibly even found them, any patent troll lawyer worth his salt will be able to use that as a solid argument for willful infringement. In case you don’t believe me – and you won’t – here you go.
Emphasis mine.
http://www.finnegan.com/resources/articles/articlesdetail.aspx?news…
Edited 2014-06-16 14:31 UTC
That assumes that a low level (i.e. non executive) engineer can have his actions attributed to his employer, and with something like this being increasingly left up to the discretion of a judge, I don’t think the link proves what you want it to prove.
But really, the point is that none of this is open and shut. These rulings are highly specific to the facts of the matter of the case and the fact finding entity (which is increasingly a Judge) in charge of deciding willful infringement.
This is why its important to contact the legal department at your place of employment and avoid the armchair lawyering.
Edited 2014-06-16 15:04 UTC
https://www.gov.uk/search-for-patent
The help on the left should help with how to search. I would suggest you have a look.
As I said before, the information is there. Could it be easier to find? Certainly.
But claiming it isn’t transparent and available isn’t correct.
If you spent the time, nothing on that published list isn’t freely available. All they have done is displayed it in a more manageable way.
I WISH it worked that way in this country. But there are several problems. Microsoft has many thousands of patents. They aren’t all labelled as to what they apply to. Many of them could be applied subjectively depending on how the patents are worded.
Finally, and most damagingly, you have the penalty for doing a patent search. If you build a product that infringes on a patent, you can normally claim ignorance and then negotiate a rate. If you are found to have done a patent search, even if you found nothing, you are now liable for intentional infringement and treble damages. So doing a patent search is NOT an option under current law.
God. I wish people here would stop saying this.
In order to have damages trebled a Judge needs to be convinced that a simple search on the USPTO would leave an engineer to believe that his actions would have an “objectively high likelihood” of constituting infringement.
Over the past year or so, findings of willful infringement have become MORE difficult to obtain, not less.
What “transparency” are you talking about? From the looks of TFA the Chinese gov looked at MSFT’s mobile patents, which frankly anybody can do since they are filed at USPTO, and compared what they covered to what Android has and picked out the obvious ones.
IRL the number is probably double or even triple, simply because this was done by some bureaucrats at the ministry of commerce and not by a large legal team with easy access to the entire patent portfolio of MSFT and its partners.
I’ve said it before and I’ll say it again…like it or not Android DOES infringe, as does Linux, BSD, OSX, and every other OS currently in use. the reason why is simple, its because MSFT R&D patents every single thing they come up with and its an old company with a lot of acquisitions. This is why even when they were suing each other Intel and AMD had cross licensing in place, why AMD and Nvidia have cross licensing, and why MSFT and Apple are all chummy now, its because patents give large corps a significant barrier to entry.
This is why Google refuses to indemnify their OEMs, its because they know if push came to shove companies like Apple and MSFT have enough ammo to bury android if they so choose, Google got lucky when Jobs died because if he’d have lived long enough to “go nuclear” as he said he would I seriously doubt that Android would be here now.
This is why I also think that ultimately “free as in beer” is gonna doom Linux because without the funds to build a large enough patent portfolio to fight back all it takes is a MSFT proxy patent troll to make Linux into a broken mess. if every single Linux distro had to rip every single thing that is listed in this doc out, would Linux even function? How long would it take to replace every single one of these in a way that doesn’t infringe? Something to think about.
bassbeast,
Did you read the article? The issue with respect to transparency is not the entire list of microsoft portfolio, that’s a red herring. MS is sitting at 41k, and such a list exists here:
http://www.nextofwindows.com/how-many-patents-microsoft-has/
This list is useless in reality though. It would take an IP expert about 20 years to merely skim through that list at one patent per hour * 40/hours per week with no vacations. Realistically it would take much longer than 1hr/patent to really decipher the legalize and then cross check it with one’s own code, so bare in mind this is a huge underestimation of work. Even at just $10/hour (another huge underestimation with no employee benefits or anything) would cost $400,000. That’s ludicrous overhead just to check for compliance. And we’re not even counting patents of any other companies nor the patents MS has continued filing in the interim.
The point of all this with regards to your post being that practical transparency would necessarily be to reveal *which* patents MS believes that android infringes. This is information that lawyers go to great lengths to hide from the public (via NDAs and by licensing the entire portfolio without regards to individual patents).
You are right, it’s virtually impossible for new software not to infringe some patents even when they’re developed completely independently.
Well, technically it’s the device makers that are paying the royalties. Linux distros that don’t make money wouldn’t be worth suing.
A lot of what you say is true. But you are missing one very important thing. The first real commercial OS was Unix and it didn’t have copyrights on it to begin with, much less patents. I large portion of what linux was originally based on came from Unix and then BSD. These sources are free and clear because they predate Microsoft and predate software patents.
Now, I am sure that Linux does probably infringe some patents. But you can bet the farm that Microsoft does also. This is why NO ONE wants to go to court over this. There is no way to know where it will land. For instance, when Microsoft sued Barnes and Noble, B&N came to court with a 50 page list of prior art. As a result, Microsoft invested $300 Million into B&N and they are still selling Android devices. Microsoft owns a lot of patents. You can also believe that Microsoft owns a lot of bad patents as well.
Who is gonna sue MSFT? The Linux foundation? MSFT could keep them tied up in court until they went broke. Google? Could just as easily do the math and see its cheaper to buy VXWorks and walk away, especially if MSFT and Apple decide to join patents in an all out attack.
Like it or not thanks to patents MSFT and Apple could make Linux completely verbotten in Berne convention countries and frankly when you are looking at hundreds of millions in lawsuits not too many are gonna wanna jump into that snakepit. if MSFT ever decides to “go nuclear” Linux is frankly in trouble, MSFT has the patents and Linux doesn’t.
bassbeast,
The most likely outcome, if the US fails to address the problem of software patents, barriers to software development will over time result in foreign companies being more viable and competitive. Under the continued burden of legal overhead, US companies are forced to divert resources from R&D, making us less competitive. In the long term, the tech sector will migrate to countries outside the jurisdiction of US-style software patents.
Presumably this is great outcome for MS, Apple, and even Google* since they face even less competition in the US and can take their own cut of competitor sales via patent royalties. I would strongly hope that politicians would eventually see how much damage the patent system causes to alternative choices. However for many people the tech sector is defined by the biggest players, small players don’t get any recognition, much less representation in government.
* I don’t generally place much faith in corporations to do the right thing, but luckily at least Google is publicly against against software patents. They’re probably the only shot we’ve got at fixing this mess.
Edited 2014-06-17 14:24 UTC
Again thanks to Berne they can make ANY AND ALL products using Android verbotten and if that happens? Well its really not gonna matter if you move R&D to Dontcareistan because any products will get treated like knockoff handbags.
Folks can mod me down all they want but I didn’t write the laws, anybody can take a look at the way copyrights and patents are handled in the west (and more and more the rest of the planet as the state dept rattles its sabers and threatens to put up sanctions against those that won’t play ball) can plainly see that the only reason Android is around is despite Gates and Ballmer’s BS to the press MSFT and Apple currently don’t care or like MSFT they can make more from hitting it with tolls than they could from killing it.
But it really isn’t hard to see a scenario where that changes, if Windows 9 flames like 8 and 8.1, if Apple can’t think of anything else to slap a lowercase i in front of as ARM runs into the same thermal wall that X86 ran into, thus making increased speed a thing of the past? Well its really not hard to see why MSFT and Apple would want those sub $100 quad core tablets and phones to be treated like a fake Rolex and between the two only a fool would say they don’t have enough patents to make Android unusable as a mobile OS.
Again nobody even attempted to answer my question, if Android and Linux were court ordered to remove the parts that violate these 200+ patents would you even have a functional OS, much less one that could be used as a phone OS, at the end? My guess is probably not, at least not without a good half decade or more of down time while you came up with a non patent violating way (if you even could, MPEG-LA for example has so many patents one can’t compress video without hitting their patents) of getting around these, a lifetime in the fast moving mobile world.
bassbeast,
I already said it earlier, many/most android device makers already have paid the patent royalties and are already in compliance insofar as microsoft is concerned. The same goes for royalties over enterprise uses of linux.
http://redmondmag.com/articles/2012/04/25/microsoft-inks-deal-with-…
http://www.zdnet.com/microsoft-inks-patent-deal-with-service-provid…
It sucks, but it’s not the catastrophic scenario for open source that you keep suggesting. It seems that you have an issue with google not paying these royalties itself on behalf of OEMs? Whether it should or not is a different discussion. But as much as it sucks, there’s no reason android or FOSS license fees can’t be paid by the manufacturers. Remember they’d have to do so anyways even if they developed their own in-house software too. Patents are legal monopolies, their scope is not limited to android or FOSS, these just happen to be in the spotlight today. Patent are bad for alternatives in general, free and proprietary alike.
Also, it’s worth noting that the more the patent system gets abused, the more difficult it will be for government to ignore. Lets say hypothetically MS tried to legally ban all unlicensed use of linux, how exactly would that possibly be enforceable? RIAA style lawsuits against users? Censorship of US networks to halt linux distribution?
Edited 2014-06-17 17:15 UTC
These I don’t have a problem with, if Microsoft does decide to enforce them. That’s the way the patent system is supposed to work, and if the above statement is legit, then more power to Microsoft for defending what they invented.
However, they should be ashamed to even acknowledge the Rockstar patents, much less try to enforce them. That is when we see a broken patent system in action.
OS News quote: They include lots of technologies developed at Microsoft
Morgan: These I don’t have a problem with, if Microsoft does decide to enforce them. That’s the way the patent system is supposed to work…
I think there are two problems with that.
Firstly, it’s entirely possible for the same ideas to be arrived at independently. The usual threshold for patentability is supposed to be something like “not obvious to one skilled in the arts”, which is a pretty low threshold. An R&D department wouldn’t be very good if it only ever produced ideas that were obvious, even if only to one skilled in the arts. In practice, patent offices may not even have the resources to maintain this threshold, because to do so they would need to employ people skilled in every field in which patents are issued. I think it’s just unworkable to expect everyone who wants to produce something to ensure that their product makes use of no patented ideas, since even employing a clean-room approach won’t prevent this, and checking that no idea employed in a product is covered by an existing patent is far more onerous than checking that a single idea isn’t covered by an existing patent (which you need to do to apply for a patent). I believe even Microsoft has unwittingly infringed patents, but they are big enough to cope with resulting lawsuits.
Secondly, some patents hinder interoperability. I think it might be fair to say that Microsoft’s approach to incorporating long file names in FAT was not obvious to one skilled in the arts, because it’s really weird (they sprinkle bits of the file name information throughout otherwise unused directory entries), and I don’t think there’s any technical benefit to this approach over the obvious approach, which others used before, of putting long file name information in a file. I rather suspect Microsoft chose to use a convoluted approach to solving a previously solved problem precisely so they could patent it and hinder interoperability.
Edited 2014-06-16 10:56 UTC
So what do you suggest, no patents at all? I’m sorry, but it simply doesn’t work that way. If there is no patent system at all, then the small-time inventors would have no incentive to invent, since there wouldn’t be a system in place to protect them from corporations stealing their hard work. Even with the current system, that kind of thing does happen, but at least there is a way to fight for their work.
I’d love to know what your idea of a working system would be, especially if it’s patent-less. You’ve highlighted some of the worst aspects of the current, admittedly broken U.S. Patent system, but ignored the merits of it. Let’s hear a better alternative.
Disclaimer: There are tons of assumptions in the below, and I’m too lazy to spell them all out. It’s possible to see the world differently, go wild!
That said,
There’s still intrinsic motivation (laymen’s term: “scratch your own itch”).
Besides the bullshit patents to improve bonuses at big corps that try to inflate their patent count, scratching your own itch is probably the most common reason something gets invented.
The current system allows corporations to steal inventions from small-time inventors (ie. employees, which is the most common income model), disenfranchising them more than a patent-free system ever could: try reusing your own ideas after moving to a new employer, now try the same with “your” patents that are assigned to your prior employer.
Either corporations scale up production, allowing inventors to buy an implementation of their idea for cheaper than they could ever build it themselves. And it will even be compliant to the forest of regulations that make any meaningful small-business commercialization hard these days.
Or corporations don’t, in which case the inventor has a niche to live off (if other people are interested in that invention).
The only small-time inventor that’s worse off without a patent system is the serial inventor who wants to live off describing ideas, then selling them off to someone else to build them. They’re sometimes called “idea guys” and considered laughing stock in some circles.
I found your ideas interesting, but this part i cannot agree. If a employee was paid to work with research and development, developed his idea in his work time as a integral part of his job, that patent must belong to the corporation.
After all, it was his job using the company infrastructure/labs in his work time.
Doing what you said would revert the entire R&D system current in place to what we had before the patent system: people and companies afraid to share inventions at all, usually with the said inventions dying with the developer who held the “production secret” up to his cove.
If it is to replace the patent system with something new, we must do with a system that stimulate the sharing of ideas and inventions, not the otherwise.
I understand that reasoning for patents, but in a patent-free environment, the original employer gets to keep the idea (and a head-start at using it), it’s just no exclusive.
As is, you have an idea at company X, years later move to company Y and even if that idea is now well-known (which is the purpose of patents), you have to work around your own work. That’s just stupid.
Not necessarily. There are enough legal frameworks where patents go to the employer, no matter when the idea sprang into existence. While the work environment certainly fosters those ideas, few people live _only_ at work.
Even with sane laws it’s hard to prove that the employer has nothing to do with an invention.
Which is exactly why I claim that employees get the shaft in the current patent regime.
This isn’t the 1830s anymore, we have better means to reverse engineer developments.
Why is stupid? You was paid to give up your idea.
The problem here is the legal framework in that said country, not the patent system per see.
Head-start is a huge aspect of selling a product. If your competitor has to waste time reverse engineering your product, he is at disadvantage. It’s far different from the hypothesis of a competitor recruiting several members of your staff and simple put up a product in the market even before you if he has the resources. Or even simple looking at it in a business fair after is done, but still not in the market, and saying “i can make a copy”, and force you to compete against a huge industrial conglomerate overnight.
Industrial espionage, leakages and unauthorized copies is already a huge problem, if you put a system that makes it all legal, you will wipe out all start-ups out of existence instead of fostering them. The only companies that could survive in this “everything allowed” jungle would be huge mega-corps in the likes of Samsung, Foxconn…
Don’t be naive, there must be some sort of protection and compensation system to allow sharing of inventions without damaging the innovator, otherwise you will end up empowering even more the big corps to crush small companies.
It may looks unbelievable at first, but simple abolishing the patent system would make the market even more concentrated at the hands of large corporations instead of weakening their grip, simple because they have the financial resources and manufacturing edge to out-compete you if you do not hold some “secret”. And by doing so, you effectively break up the whole idea sharing chain, decreasing innovation instead of fostering it.
I find it hard to believe a world without software patents could be worse than what we have now, where anyone who writes anything more complicated than a for loop is violating a patent.
Thank you. This is the kind of discussion I was seeking. I do still believe that we should have some sort of patent protection for the little guy, as he is most in need of protection. Corporations should focus on creating and implementing their own ideas, instead of litigating and stealing others’ ideas. But that’s a a dream for a perfect world that we’ll never attain.
As for companies who exist solely as patent holders and don’t create anything, I think they should be outright illegal. But that would involve throwing out the entire patent system as it stands and rewriting it from scratch. As we’ve learned through the years, the U.S. government will never do something that makes that much sense. I look with envy at the patent reform slowly happening in other parts of the world.
Litigation would be less of a problem without patents.
This is called the False Dilemma fallacy.
The other option is to disallow software patents and the reduce the term of a patent.
It’s not a false dilemma, he is proposing a discussion and left the options open after telling his view point.
Anyway, what must be disallowed must be a lot more than just software patents, it must be extrapolated to all things that exist only in the realm of abstract.
Indeed, i think that the only thing that must be patentable at all are mechanical devices who was build in some form, proven to work and is not obvious.
What’s false about it? It’s a plausible scenario.
That said, I agree with you 100% after your first sentence.
http://en.wikipedia.org/wiki/False_dilemma
Again, it’s plausible. I probably could have worded it differently to better reflect that, but you seem to be arguing that it flat-out will not happen the way I posited, which is in itself a false dilemma. It works both ways, you see.
In the field of software, completely banning patents isn’t especially unthinkable – it’s already the state of things in many countries. It’s partially because it’s hard to nail down what a software patent is: Pure algorithms (e.g. quicksort) are perhaps the closest analogies to classical technical patents, but they are also dangerously close to mathematical methods, and near everyone agrees those shouldn’t be patentable. Also, remember that actual implementations are copyrightable anyway; you don’t need patents to protect your concrete code.
As for a completely patent-less system, yes – it would suck for genuine inventors who come up with ingenious solutions and license them out. It would also remove a huge amount of suckage from software and device development, no matter the size of the operation. It’s not given that this would balance out to a net negative.
Besides – what’s more important for most new products and ideas today? The patents, or good functionality/usability/design/marketing? Also, while removing patents would remove their protection against an established player copying their tech, it would also remove the ability of established players to sue them into the ground for infringing on their portfolio of vague and obscure patents.
Now, there are fields where patents seem more important; medicines are perhaps the most obvious one. I can imagine alternative solutions, but they’d effectively be either a slightly rebranded patent system (e.g. not allowing licensed healthcare providers to use clone drugs for a time period), or too easy to game (e.g. huge bounties from the NHS).
edit: Oh, I managed to miss the entire next page of comments. Oops.
Edited 2014-06-16 15:26 UTC
I don’t really see that being the case.
Big companies today don’t just buy up firms for IP. They buy them for the user-base, for the work to complete the product, for the workers…
Even today, many smaller firms go into business with the express purpose of being bought out. I don’t see how that would change in the future. Building a new product is a big risk for a big company.
If you have a small company who has already done the work and gotten users, you just buy them out.
This does not happen anyway in the current system in the US, because small companies don’t win court cases against large companies.
Lennie,
For some reason osnews says I voted you down, even though I didn’t even read your post… Feel free to add 2 back
Anyways, that’s a large problem. Unfortunately the courts themselves are being used as an offensive weapon against those who don’t have the means to defend themselves. Most small companies have limited resources and can’t really afford to go to court. The loss of productive time alone and not able to complete work to continue getting paid is enough to make me shiver. The net result is almost always the same, defendants in IP cases end up paying unjustified compensation to settle rather than close their doors.
Even for small companies who ostensibly might benefit the patent system by using it offensively, this still requires enormous amounts of time & resources that such companies usually don’t have. From filing/renewing, to suing other companies in court it’s a huge multi-year undertaking with expensive IP lawyers costing much more than the “invention” itself did. Realistically small R&D companies can’t benefit from the patent system in the same way large companies can, which is why patents are generally resold to larger holding (patent troll) companies who’s business models are better optimized for the patent system.
Edited 2014-06-16 20:51 UTC
Sure make bigger companies so they can sue people, seems like a great idea ?:
http://www.rackspace.com/blog/why-rackspace-sued-the-most-notorious…
Morgan: So what do you suggest, no patents at all? I’m sorry, but it simply doesn’t work that way. If there is no patent system at all, then the small-time inventors would have no incentive to invent
…
You’ve highlighted some of the worst aspects of the current, admittedly broken U.S. Patent system, but ignored the merits of it. Let’s hear a better alternative.
Yes, the patent system has benefits as well as costs, but the costs generally outweigh the benefits:
Patents are only one of several motivators for innovation, and a thorough literature review has found it to be well established that in most industries, other factors, such as lead time and secrecy, are more relevant than patents (López, 2009, p. 21). Past research suggests that only in the pharmaceutical and chemical industries would a large number of innovations not have been developed without patents (Mansfield,1986), and current research suggests that, taking into account the economic cost of patents, it is only in these industries, where patent cover is unambiguously defined in terms of chemical formulae, that patents provide a net economic benefit (Bessen, 2008).
Bessen, James & Meurer, Michael J. (2008) Patent Failure. Princeton University Press.
< http://press.princeton.edu/chapters/s8634.pdf >
López, Andrés (2009) Innovation and appropriability, empirical evidence and research agenda. In WIPO (2009) The Economics of Intellectual Property.
< http://www.wipo.int/export/sites/www/ip-development/en/economics/pd… >
Mansfield, Edwin (1986) Patents and Innovation: An Empirical Study, 32, Mgmt. Science 173.
Edited 2014-06-16 23:43 UTC
No patents at all is much better. Don’t believe it? How soon people forget, but no patents at all was commonplace until just recently. ESPECIALLY in software. Patents on software were uncommon and unenforceable until some time in the 90s. Bill Gates himself claimed that patents get in the way of software companies, and that MS only thrived when there were no software patents.
People will invent and create regardless of any “protections” – always have, always will. Patents and copyrights are merely a current fad that keeps unemployable lawyers off the streets. They might have brainwashed some idiots into thinking they are a necessary part of modern society, but any thinking person knows better. We continue to advance DESPITE IP laws, not because of them.
JLF65,
I had never heard that before, I found some references to this though:
http://web.archive.org/web/20010218085558/