We need war
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| Author | Content |
|---|---|
| Grishnakh Nov 01, 2011 4:11 PM EDT |
With Apple and MS poised against each other with all these patents, what we really need is a giant war between them (in the courtroom, of course). While this would certainly make the lawyers richer, it would make Apple and MS both much poorer, and that can only be a good thing for the rest of us. |
| JaseP Nov 01, 2011 5:24 PM EDT |
What we really, really, really need is to have users file objections to the patents, under the new challenge rules, and invalidate both companies' patents. |
| herzeleid Nov 01, 2011 5:58 PM EDT |
+1 insightful to JaseP comment |
| Fettoosh Nov 01, 2011 6:29 PM EDT |
Quoting:it would make Apple and MS both much poorer, A war between the two will not make them poorer any time soon. They are not stupid and will stop the war in a second when the cost reaches an allocated limit. What is needed is for consumers get informed and switch to Open Source. Abolishing software patents or invalidating all of the bogus ones is a big step forward. |
| hkwint Nov 02, 2011 1:48 PM EDT |
JaseP: What we really need is the assignees of 'rejected' patents to pay a fine, and that fine being rewarded to the person who 'objected' against the patent. Old idea of 'the polluter pays' by the FSF, which really works. That way, people could make a living out of objecting against patents. Because it would become dangerous to file a patent which might be rejected (because of the fine if it's rejected), companies would start doing their own research before filing a patent. Because in such a system, the filer would do the research USPTO / EPO is doing now, USPTO / EPO don't have to do the 'newness'-research anymore. Because those offices don't need to do all the research, patents become cheaper and could be awarded for free, being enforceable from the time they're filed. You see, it doesn't take rocket science to fix the system. |
| Grishnakh Nov 02, 2011 3:21 PM EDT |
@hkwint: Won't work. The system is already too biased against small players; you can't make it so that some guy in his garage applying for a patent is automatically liable for some enormous fine just by trying to patent his little invention that turns out to already have prior art. |
| JaseP Nov 02, 2011 4:47 PM EDT |
Oh my God!!! Gris & I actually agree on something!!! |
| tuxchick Nov 02, 2011 5:01 PM EDT |
Quoting: Oh my God!!! Gris & I actually agree on something!!! My heart stopped. Briefly. |
| Grishnakh Nov 02, 2011 5:35 PM EDT |
The fine for rejected patents thing might be workable though: make it dependent on how many patents you file per year. So if you file <5 patents/year, there's no fine for rejected patents. If you file thousands per year, however, you get big fines for rejected ones. This would spur large corporations to only file more worthy patents instead of the mountains of rubbish patents they currently file. |
| techiem2 Nov 02, 2011 5:47 PM EDT |
Like $1B for 1st bad patent after patent application 5, $2B for for 2nd, $4B for 3rd...... That should cut it down a bit. :P |
| jdixon Nov 02, 2011 8:17 PM EDT |
You don't need a fine for a bad patent as such. Dino can correct me if I'm wrong, but I believe the statements signed when applying for a patent stating that the patent is valid to the best of your judgment are given under oath. Simply start charging the companies and the appropriate company officials (under Sarbanes Oxley, that could conceivably include the CEO) of companies who submit patents later ruled obviously invalid with criminal perjury, and levy fines/jail sentences accordingly. You'd be amazed at how quickly things change when CEO's, other top company officials, and board members face the risk of jail time. |
| Grishnakh Nov 02, 2011 9:06 PM EDT |
@jdixon: It's nearly impossible to prove that someone knew or didn't know anything; there's no way you'd prove that some CEO knew a patent was invalid at the time of signing (esp. when CEOs have nothing to do with filing patents, other than vaguely directing their underlings to file as many patents as possible; it's not like the CEO personally reviews each one, or would even be competent to know anything about them). Besides, SOX is probably going to repealed very soon. |
| jdixon Nov 02, 2011 10:38 PM EDT |
> ...t's nearly impossible to prove that someone knew or didn't know anything; there's no way you'd prove that some CEO knew a patent was invalid at the time of signing Immaterial. You don't have to prove that any knew anything, only that they should have known. Both the lawyers and company officers involved are supposed to be competent to do their jobs. Under Sarbanes Oxley, CEO's must make an affirmative statement that their financial statements are true, and can be held criminally liable if they're not. I believe the same is true for the CFO and board members. Since a patent is a financial holding, there is little doubt the same standard could be applied to the company's patent submissions. And since a false patent is an attempt to defraud both the public at large and the ones who could otherwise be the legal holders of the patent, it is arguably a criminal offense, not just a civil one. Remember that these people have both legal and fiscal duties. They are supposed to be competent to perform their jobs. Incompetence on the order of many of these patent filings is a breach of those duties. There are currently penalties for such breach of duties. They're simply seldom enforced. The civil conviction of President Clinton under perjury charges should be a clear reminder that they can be if a court so chooses. All I'm arguing is that the laws governing such behavior should be enforced to the maximum extent. Whether my understanding of that extent is correct or not, there is no doubt that they're not being enforced currently. If they were; most of this problem would go away. Lawyers who submit invalid patent applications should either have their licenses revoked or go to jail, depending on how blatantly invalid the application was. The corporate officials responsible should be held criminally liable for their actions. |
| BernardSwiss Nov 02, 2011 11:13 PM EDT |
You generally can't prove ignorance, but you can prove "wilful ignorance". |
| jdixon Nov 03, 2011 10:58 AM EDT |
> You generally can't prove ignorance... The point with Sarbanes Oxley is that the burden of proof isn't even ignorance. You have to show that you made a good faith effort to comply. I don't think there's much doubt that patent applications would fall under the Sarbanes Oxley provisions, given their potential impact on a company's earnings. |
| henke54 Nov 03, 2011 12:56 PM EDT |
racketeering is the name....nothing else.... :
Quoting:In the manner B&N described, Microsoft seemingly approaches each OEM and informs them rather vaguely (nothing specific) that their products are infringing on their patents. At that point there are two important questions the OEM’s must ask themselves, what’s the estimated cost of filtering through these patents, comparing them with the source and seeing if their legit and on the flip-side, what’s the cost of settlement in comparison. To expand a bit on the first thought of the two, companies must fist diagnose how expensive it will be to prove in court that they aren’t infringing and asses how solid of a case they can build all while cross referencing how does “that” cost relate to the product they’re selling. While that nice approximate number is rounded out they must also look at the second question which is, ultimately, how much the cost to settle is. Large corporations use their size and influence to intimidate smaller ones all the time, it’s not uncommon for the smaller company to simply settle when it knows that it would be far out of its comfort zone enduring a long costly battle with a company with the heft of Microsoft.http://www.thebitbag.com/2011/11/02/microsoft-protecting-inn... |
| BernardSwiss Nov 03, 2011 5:39 PM EDT |
@henke54 Nice link. Thanks, |
| gus3 Nov 03, 2011 6:08 PM EDT |
"Companies must fist..." I suppose, if dueling is still illegal. |
| henke54 Nov 08, 2011 5:39 AM EDT |
Huawei confirms that Microsoft is chasing it for Android patent licence : http://www.guardian.co.uk/technology/2011/nov/08/huawei-micr... Quoting:Xu suggested that Google's acquisition of Motorola Mobility, which is still underway, might lead to more protection from Google for Android licences. when is goog gonna do something ? maybe when pigs fly ? |
| Grishnakh Nov 08, 2011 11:59 AM EDT |
@With Huawei being pursued by MS, maybe now we'll see some patent fixes: Huawei can get their government to threaten the American government to deal with Microsoft, or else the Chinese government can call in their loans, causing our economy to collapse overnight. |
| Fettoosh Nov 08, 2011 12:44 PM EDT |
Quoting:Nice link. Thanks, What is so nice about it when the first thing one sees is in your face picture of a gangster? :-) |
| henke54 Nov 09, 2011 12:24 PM EDT |
At least B&N is 'going for it' :
Quoting:Barnes & Noble, book seller and maker of Android based Nook devices, has called on the US Department of Justice to investigate Microsoft's demands for patent royalties on devices that run Android. Bloomberg reports that, in a letter to Gene Kimmelman, the DOJ's chief counsel for competition policy, Barnes & Noble says that "Microsoft is attempting to raise its rivals' costs in order to drive out competition and to deter innovation in mobile devices."http://www.h-online.com/open/news/item/Android-device-maker-... |
| helios Nov 09, 2011 12:43 PM EDT |
FTA: "The patent trial which will consider Microsoft's claims against Barnes & Noble is set for February." I will watch this with the intensity of the Ali/Shavers bout in 77. Now we'll see just how strongly politics and lobbying does influence law. Barnes and Noble has a stong case...strong enough that it might just force MS to finally show their hand. The extremely interesting part of this will be if MS is shown to have no basis for charging these fees, what recourse will be taken to punish them. Of course, a lot has to happen in our favor before that is even a possibility. I'm particularly interested in learned opinions here. Dino? |
| JaseP Nov 09, 2011 12:58 PM EDT |
Last minute settlement, I'm betting, ... with terms B&N is willing to swallow, plus the obligatory NDA... Any takers on that bet?!?! |
| mrider Nov 09, 2011 1:18 PM EDT |
They say that those who fail to learn from history are doomed to repeat it. B&N at least has the means to learn from history. Here's hoping that they decide to fight back against the Danes rather than pay the Dane gold. Although I sure won't bet against you JaseP |
| jdixon Nov 09, 2011 1:39 PM EDT |
> Any takers on that bet?!?! I think we all know better by this time. :( |
| BernardSwiss Nov 09, 2011 7:37 PM EDT |
Much as I hate to say it, that's a very likely scenario -- if for no other reason than that both sides' lawyers will be reminding them that anything can happen in court, and it's best avoided if at all possible. Microsoft may have weak and/or bogus patents that don't apply and should never have been granted anyhow, but Barnes and Noble can't count on that basic truth carrying the day, and they have to be able to afford to fight instead of sign some deal. RIM still had to settle with NTP ($612.5 Million) even though none of the patents in question held up under review (and in fact only one, already clearly destined to be shot down, even lasted till the settlement was reached). |
| helios Nov 10, 2011 12:33 AM EDT |
Somewhere, sometime, and somehow, Microsoft is going to have to show their patent hand, or be forced to show their patent hand. I can't see any other way to analyze it... Microsoft is encouraging continual infringement so companies like HTC and others have to pay them license fees. How can they NOT lose the rights to said patents if that is proven? You either offer the opportunity for people to avoid the infringement or lose the right to that patent all together. You can't trap someone into infringing then demand a payment. Well wait, maybe you can....MS has been successful at it for a while now. I realize that it is up to the corporate leadership NOT to lead their company down litigatgion trails but dammmm, it's also impossible to see all the landmines within the obscure and goofy patents that exist. I still say B&N may stay in this long enough for it to make a difference in the long run....The judge's attitude out of the gate will determine much. Let's just hope it isn't in East Texas. |
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