Linked by Thom Holwerda on Wed 6th Jul 2011 14:00 UTC
Microsoft Well, paint me red and call me a girl scout, I totally did not see this one coming at all. This is so utterly surprising it made my brain explode. Hold on to your panties, because this will rock your world. After pressuring several smaller Android vendors into submission (and yes, HTC is still relatively small compared to other players), Microsoft is now moving on to the big one: Redmond is demanding $15 for every Samsung Android device sold. Samsung's choices are simple: pay up, or face another epic lawsuit.
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lemur2
Member since:
2007-02-17

lemur2, "Pure software patents and business plan patents are not allowed period." That doesn't mean they haven't gotten through. "A piece of software is not patentable (even in the US) unless it is part of a specific machine (one specifically devised and adapted to carry out the patented process). Under this definition, for example, an application running on a general-purpose PC is not patentable (becaue the PC is general purpose)." I really wish you were right, but the courts have permitted software patent holders to go after software developers. So long as this is the case, software patents are effectively valid in the US. It's one of the reasons unlicensed linux distros cannot directly include mp3 players (for one example). If you read some of these software patents, you'll have to agree that software developers and their customers can infringe upon them. I don't like it any more than you do. As far as I know congress has never said anything for or against software patents, and in the end it's up to them to overturn case law.


Patents awarded by the US Patnet Office are not necessarily valid. They are not shown to be valid until upheld in a court case.

A patent "getting through" does not actually mean that it is valid, it just means that the US Patent Office has awarded the patent. AFAIK this is like an "administrative stamp", it is not a legal approval.

There are many reasons why a given patent may not be valid, including prior art and obviousnesss, as well as not being a specific machine or transformation.

http://en.wikipedia.org/wiki/Peer-to-Patent

There are literally thousands upon thousands of US patents which are routinely used to threaten people and extort royalty payments which have never actually ever been validated in a court trial.

Normally this occurs because it is cheaper for the party accused of violating a patent to simply pay the royalty that is being asked for than it would be to challenge the validity of the patent in court. There is an inherent unfair bias, a presumption that the patent is valid, that is built in to the "burden of proof" in patent cases.

http://www.patentlyo.com/patent/2011/06/microsoft-v-i4i-supreme-cou...

They fact that royalties are being paid does not make the patent in question valid.

The rules, and the original intent, of patentablitiy are actually reasonably clear. Patents are supposed to "encourage the useful arts". That original intent of patent law could be further from the actual current practical outcomes of the law today, especially in the field of software development.

The case of "Microsoft Demands $15 for Every Samsung Android Phone Sold" is a classic example of how patents are being used today to PREVENT new products and innovation in the market rather than foster them, as they were originally intended to do. Microsoft did not write any of the Android software, and Android itself is FUNDAMENTALLY different to any software of Microsoft's.

Edited 2011-07-11 07:04 UTC

Reply Parent Score: 2

Alfman Member since:
2011-01-28

lemur2,

"Pure software patents and business plan patents are not allowed period. "

"A piece of software is not patentable (even in the US) unless it is part of a specific machine (one specifically devised and adapted to carry out the patented process)."

"There are many reasons why a given patent may not be valid, including prior art and obviousnesss, as well as not being a specific machine or transformation."


I've noticed that you often tend to project what you want to be true as fact. You seem to forget that this question went all the way to the supreme court just last year, and they were not in agreement with your view.


http://blawg.scottandscottllp.com/businessandtechnologylaw/2010/07/...

"The Supreme Court expressly rejected the machine or transformation test as the sole means to assess process patentability. However, other than identifying the test as a useful tool to make that assessment, the Court did not express any test or set of factors to provide any additional guidance on the subject."



Read their justification for yourself on page 2.

http://www.supremecourt.gov/opinions/09pdf/08-964.pdf

They ruled that unless congress amends patent law, it's not up to the courts to prohibit software patents.

Reply Parent Score: 2

lemur2 Member since:
2007-02-17

lemur2,

"Pure software patents and business plan patents are not allowed period. "

"A piece of software is not patentable (even in the US) unless it is part of a specific machine (one specifically devised and adapted to carry out the patented process)."

"There are many reasons why a given patent may not be valid, including prior art and obviousnesss, as well as not being a specific machine or transformation."


I've noticed that you often tend to project what you want to be true as fact. You seem to forget that this question went all the way to the supreme court just last year, and they were not in agreement with your view.


http://blawg.scottandscottllp.com/businessandtechnologylaw/2010/07/...

"The Supreme Court expressly rejected the machine or transformation test as the sole means to assess process patentability. However, other than identifying the test as a useful tool to make that assessment, the Court did not express any test or set of factors to provide any additional guidance on the subject."



Read their justification for yourself on page 2.

http://www.supremecourt.gov/opinions/09pdf/08-964.pdf

They ruled that unless congress amends patent law, it's not up to the courts to prohibit software patents.


The US Supreme Court did cop out a bit on this decision. However, they did decide that the actual business method patent in the Bilski case was not patentable subject matter, and they did say that the machine or transformation test was a good starting point.

You will notice that the particular round of patent extortions which is the subject of this very discussion, Microsoft have gone after manufacturers of specific Android devices. Microsoft has not gone after Google, even though going after Google would be worth a lot more money.

The "Android" product as distributed by Google is purely software, it is not implemented in any specific machine. This fact gives Google a great avenue to defend Android against patent attack, one which is not IMO available to the manufacturers of Android devices. IMO this alone is the very reason why Microsoft has not gone after Google directly.

For a loooooooong time, it was perfectly clear even in the US that patents were for physical inventions, and not for software. The entire software industry, from its infancy through the era of mainframes and well into the initial period of the personal computer, was built up over many decades from nothing in an entirely patent-free environment.

I don't really know why the US Patent Office and the US Courts have lost the plot since then. One suspects corruption and greed in very high places.

PS: I'm just going to ignore the ad hominem attacks in the hope that you can conduct an actual civil discussion here.

As they say on reddit ... obvious troll is obvious. See if you can't give it a rest, hey?

Edited 2011-07-11 09:21 UTC

Reply Parent Score: 2