- Site menu:
- Latest Discussions
- Latest Newswire
- Archives
- Submit Story
- Story HOWTO
- Syndicate
- E-mail Alerts
Dell's Linux Problem
|
|
Comments (37)
17 earlier comments in the full thread.
>IANAL, but I don't think he can do that legally. Dino? Little help here?
Yes, he can do that legally.
The problem he can run into, however, is that patent infringement recovery requires notice. That's why you see so many items with patent numbers on them.
So far, all they have said is that there is some infringement, but, without some notice as to what is being infringed, I don't think (I am not, and never was a patent lawyer, and the rules are different from copyright) they can recover for past infringement. Once they inform people reasonably (and, in the case of linux, I think they would have to make clear what patents are being infringed), they can sue to recover for ongoing infringement.
Microsoft's strategy might make a certain sense. A couple of things come to mind. First, any money to be made is likely a one-shot deal. Once they put the patents out there and claim infringements, the kernel developers can "invent around" the patents, or fight them.
Inventing around is simply the process of doing what you need in a different way. My name got on a couple of patents by virtue of the inventing around process. While at a former employer, AT&T held a network patent that crimped our ability to negotiate for better long distance rates. In cooperation with competing carriers, we came up with another way to achieve the same end. AT&T still had its patent, but it didn't apply to us.
Microsoft might be waiting for some of its applied-for patents to be granted, or they might simply want to get the biggest one-time shot they can, figuring that the value of their patent portfolio will take a big hit the minute they actually use it in anger.
Yes, he can do that legally.
The problem he can run into, however, is that patent infringement recovery requires notice. That's why you see so many items with patent numbers on them.
So far, all they have said is that there is some infringement, but, without some notice as to what is being infringed, I don't think (I am not, and never was a patent lawyer, and the rules are different from copyright) they can recover for past infringement. Once they inform people reasonably (and, in the case of linux, I think they would have to make clear what patents are being infringed), they can sue to recover for ongoing infringement.
Microsoft's strategy might make a certain sense. A couple of things come to mind. First, any money to be made is likely a one-shot deal. Once they put the patents out there and claim infringements, the kernel developers can "invent around" the patents, or fight them.
Inventing around is simply the process of doing what you need in a different way. My name got on a couple of patents by virtue of the inventing around process. While at a former employer, AT&T held a network patent that crimped our ability to negotiate for better long distance rates. In cooperation with competing carriers, we came up with another way to achieve the same end. AT&T still had its patent, but it didn't apply to us.
Microsoft might be waiting for some of its applied-for patents to be granted, or they might simply want to get the biggest one-time shot they can, figuring that the value of their patent portfolio will take a big hit the minute they actually use it in anger.
Quoting:Yes, he can do that legally.
Dino:
Sounds reasonable, but I am still not sure about some vague issues. I appolize, but I am an EE and things always need to be in black and white to understand them.
Well, any one can sue any body, but whether they can get anything out of it is what counts, right!
Quoting:without some notice as to what is being infringed, ... I don't think they can recover for past infringement.
So far so good. But what sort of notice does it have to be? Would a public one suffice in court? Or does it depend on the case and the judge?
Quoting:Once they inform people reasonably (and, in the case of linux, I think they would have to make clear what patents are being infringed), they can sue to recover for ongoing infringement.
So far we are still OK. Developers would remove the infringing code unless it is major, then we have a problem.
Is it only in Linux case or is it in general that who ever is claiming infringement is obligated to disclose the infringemnet?
It sounds like, they can recover on ongoing but not past infringement, right?
Quoting:Microsoft's strategy might make a certain sense. A couple of things come to mind. First, any money to be made is likely a one-shot deal. Once they put the patents out there and claim infringements, the kernel developers can "invent around" the patents, or fight them.
I am confused how their strategy could make sense. If MS gives a notice, and developers "invent around" it, how is MS going to make money by suing, especially when they can not recover for past infrigment?
So, if MS knows for sure that there is infringement but keeps delaying their suit, they are actually losing market share, giving Linux a chance to become more entrenched, and losing potential money if they keep delaying.
I hope you have time to research these!!!
Abe -
Notice is not a linux thing, but it need not point to a specific infringement. The normal case, for example, when you buy a product covered by patents, is that it will have a list of patents attached right to it. That is sufficient notice that the item is covered by patents and that you infringe those patents at your own risk.
I don't know how many specific patents Microsoft lists on it's box. For that matter, I don't know the rule of thumb for actual notice in software cases, but I would bet that Microsoft hasn't given it.
The way that the strategy could make sense is this:
1. Knowing that developers could invent around, you also know that you have a limited time to make hay. Have as many patents in hand as you can -- even if all of them can be circumvented, more things means more time.
2. If there's a fight, you could lose a lot of your patents, so, again, strike to the biggest effect. Bad patents are very valuable. Invalidated patents are worthless.
Notice is not a linux thing, but it need not point to a specific infringement. The normal case, for example, when you buy a product covered by patents, is that it will have a list of patents attached right to it. That is sufficient notice that the item is covered by patents and that you infringe those patents at your own risk.
I don't know how many specific patents Microsoft lists on it's box. For that matter, I don't know the rule of thumb for actual notice in software cases, but I would bet that Microsoft hasn't given it.
The way that the strategy could make sense is this:
1. Knowing that developers could invent around, you also know that you have a limited time to make hay. Have as many patents in hand as you can -- even if all of them can be circumvented, more things means more time.
2. If there's a fight, you could lose a lot of your patents, so, again, strike to the biggest effect. Bad patents are very valuable. Invalidated patents are worthless.
> So, if MS knows for sure that there is infringement but keeps delaying their suit, they are actually losing market share, giving Linux a chance to become more entrenched, and losing potential money if they keep delaying.
Or they can blackmail Linux vendors into paying a per copy royalty to Microsoft to keep from being sued. :(
Or they can blackmail Linux vendors into paying a per copy royalty to Microsoft to keep from being sued. :(
Quoting:Or they can blackmail Linux vendors into paying a per copy royalty to Microsoft to keep from being sued. :(
That is the killer because MS strategy is to add overhead to Linux as much as they can and some vendors might chicken out, like Novell & Dell did. I guess that is what Dino is pointing to by saying MS strategy could make sense. Blackmail becomes ineffective as it gets exposed with time similar to SCO's claims.
Quoting:Dino:
So, it is a hairy ball of wax we have to deal with or go somewhere else where Patent Laws are not valid. I would chose to deal with it to see the end of MS. MS is not the first one and will not be the last.
One company is not going to be effective against MS, but numerous little ones each suing MS will work just fine.
>One company is not going to be effective against MS, but numerous little ones each suing MS will work just fine.
For the most part, Microsoft seems to be on the paying end of patent suits.
For the most part, Microsoft seems to be on the paying end of patent suits.
One minor point. I make no claims to being a patent lawyer, but my understanding was that the serious offense is knowingly using someone else's patent without compensation. By giving notice, it is easy to prove that the offender knew about the patent, but there might be other ways to meet the criteria.
It is possible that someone other than the patent holder (such as an employee of the offending company) could notify management of the infringement, or for patents like MP3, any company distributing multimedia should know there are patent issues. Microsoft might knowingly use a patent but keep it secret inside their source code, but if I'm correct, they'd still be in violation.
Microsoft might have a case because Linux distributors like Red Hat should know about at least some of the infringing code.
It is possible that someone other than the patent holder (such as an employee of the offending company) could notify management of the infringement, or for patents like MP3, any company distributing multimedia should know there are patent issues. Microsoft might knowingly use a patent but keep it secret inside their source code, but if I'm correct, they'd still be in violation.
Microsoft might have a case because Linux distributors like Red Hat should know about at least some of the infringing code.
Quoting:It is possible that someone other than the patent holder (such as an employee of the offending company) could notify management of the infringement,
IANAL, I believe you are right. When legally notified (by owner or anyone else who can prove it in court) that your are infringing on a patent and don't stop or pay royalty, you are committing a serious offense.
Quoting:Microsoft might have a case because Linux distributors like Red Hat should know about at least some of the infringing code.
Why & How should Red Hat know about infringing on MS code? MS software is not open, MS didn't notify Red Hat, as far as we know? Did Red Purchase MS products with patents listed on the package? Or is it just because MS said that Linux infringes on MS code?
Quoting:For the most part, Microsoft seems to be on the paying end of patent suits.That is conforting. But can it be used in court as a precedence?
One more question Dino. Is it possible that all this public announcement by Ballmer about Linux infringing be considered as a sufficient legal notice?
Wouldn't it only be considered sufficient notice if they actually said what patents were being infringed?
At least that would be the logical conclusion.
Not that our legal system is anywhere near logical...
> MS software is not open, MS didn't notify Red Hat, as far as we know?
Again, I'm not a patent lawyer, but it is possible that they would argue that Red Hat might have known by other means. For instance, there have been studies done on the topic (that Ballmer likes to talk about). Red Hat surely knows about these studies, and has most likely even done their own. I'm just throwing this out for thought, with no claim to knowledge on the topic, just applying the logic of a few things I've read.
Again, I'm not a patent lawyer, but it is possible that they would argue that Red Hat might have known by other means. For instance, there have been studies done on the topic (that Ballmer likes to talk about). Red Hat surely knows about these studies, and has most likely even done their own. I'm just throwing this out for thought, with no claim to knowledge on the topic, just applying the logic of a few things I've read.
Quoting:Wouldn't it only be considered sufficient notice if they actually said what patents were being infringed?
I guess it would be, but they might have a good reason for not to. Or it could just be a big mistake by Ballmer.
Quoting:For instance, there have been studies done on the topic...
But that doesn't mean Red Hat read the studies or known about it. Some one has to prove it in court.
Quoting:and has most likely even done their own.They better had not done that, it would be self increminating. Any ways, MS has to prove that they did it or at least known about the specific infringement. I don't believe Red Hat are stupid enough to do that. As a matter of fact, on lawyers advice, companies forbids their employees from discussing or even talking about patents. Claiming ignorance is one good defense strategy to avoid severe penalties.
Bigg, I understand your point, but we are just throwing brain storming ideas.
>Linux infringing be considered as a sufficient legal notice?
No. Microsoft must announce its patents. That is not the same, however, as saying that Linux ifringed Patent A. It is sufficent to say that they are covered by Patent A, which gives develoeprs a chance to see what it covers.
No. Microsoft must announce its patents. That is not the same, however, as saying that Linux ifringed Patent A. It is sufficent to say that they are covered by Patent A, which gives develoeprs a chance to see what it covers.
Quoting:No. Microsoft must announce its patents
Thank you. No more questions your honor, I rest my case.
It is funny, My head hurts but I feel better now.
Abe, there'll be no more legal jargon for you today!
Quoting:Abe, there'll be no more legal jargon for you today!
Thanks, I needed the break. How about the counsel? He deserves a break too. I hope he doesn't send me a bill!
Sorry, but I can't help you with the bill. That's between you and your counsel.
Counsel(s) are on break for a while. Court is adjorned. ;-)
Counsel(s) are on break for a while. Court is adjorned. ;-)
Post a comment
A free account is needed to post. Write your comment here first: your text is kept in this browser while you sign up or log in, and is waiting for you when you come back.
Your message:Markdown: **bold**, *italic*, [text](https://link), - lists, > quotes, $x^2$ for math. Formatting help
Sign up and post (it is free) or Log in and post
We'll all have to keep track of the relevant legal issues from PJ, the Groklaw respondants (and maybe Dino?)