“The Supreme Court ruled against Microsoft on Thursday in its appeal of a record $290 million jury verdict for infringing a small Canadian software firm’s patent. The justices unanimously upheld an appeals court’s ruling that went against the world’s largest software company in its legal battle with Toronto-based i4i Limited Partnership. The smaller company had argued that Microsoft Word had infringed its method for editing documents. Microsoft contended that i4i’s patent was invalid.”
Looks like the i4i employees get to retire a bit earlier than expected
Gulp.
The upside for Microsoft is that it is pretty likely that OpenOffice violates the same patent, making Microsoft Office the legally safer option for customers now that Microsoft has opened its coffers to become compliant.
Software patents is such trouble.
vaette,
“The upside for Microsoft is that it is pretty likely that OpenOffice violates the same patent, making Microsoft Office the legally safer option for customers now that Microsoft has opened its coffers to become compliant.”
I doubt they’d sue the open office team, not much money there. They could just sue the larger users of openoffice though.
“Software patents is such trouble.”
That is what happens when lawyers take over.
Am I the only one that thinks that this is insane? I mean, seriously, how can you expect end-users to be aware what patents a product infringes on? Am I really expected to take every product I buy apart and verify every component? Seriously?? I used to think you couldn’t sue for this but it seems common sense has left the building.
Soulbender,
“Am I the only one that thinks that this is insane? I mean, seriously, how can you expect end-users to be aware what patents a product infringes on? Am I really expected to take every product I buy apart and verify every component? Seriously?? I used to think you couldn’t sue for this but it seems common sense has left the building.”
This argument is also applicable if you substitute end-users->developers and buy->build.
By far and large, software infringement is inadvertent. The developer has no more reason to suspect infringement than anyone else (statistically he will infringe patents, but it is an enormous undertaking to determine which ones).
No, you’re not the only one. This is especially scary for newcomers: if you were for example to set up a small shop of your own you’d have to constantly be afraid that someone comes up and sues pants off of you for infringement. And obviously, a small company that has just started rolling will have absolutely no way or financial means of going through every and all patents!
Ie. all of this basically just screws over anyone who doesn’t already have a huge patent portfolio of their own: if you don’t have one then you’re a free meal to anyone who does have such.
Not according to i4i, the holders of the patent in question:
http://yro.slashdot.org/story/09/08/18/190227/i4i-Says-OpenOffice-D…
“i4i Says OpenOffice Does Not Infringe Like MS Word”
Edited 2011-06-09 23:14 UTC
Upside? i4i publicly stated that OOo does not infringe. Get the background to the story.
That is really bad. What this ruling shows is that crap can uphold all instances of justice in the US.
I fear that soon not only large companies publishing their products in the USA will be targeted, but also small entities, be it companies or whatever.
At one point patents were meant to advocate innovation. Now their only point is to kill innovation or to profit of others’ innovations. Instead of supporting those who innovate software patents only support parasites.
mat69,
“That is really bad. What this ruling shows is that crap can uphold all instances of justice in the US.”
It sucks, but that’s the law.
You can’t blame the supreme court here as much as the corrupt congress and corps who forced a broken patent system down everyone’s throats.
“I fear that soon not only large companies publishing their products in the USA will be targeted, but also small entities, be it companies or whatever.”
That’s the scary part, what happens if patent holders begin targeting small entities on a large scale?
It’s not really possible to write software without infringing. Software patents mean large legal burdens and expenses with absolutely nothing in return for independent developers.
The only saving grace for the US patent system today is that it has been very poorly enforced against small developers.
And who’s one of the biggest supporters of that system? Microsoft! Sorry for the profanity, but Microsoft just got flung their own poo right in their face!
I fear that Lodsys might prove that that statement will not be true for much longer.
Edited 2011-06-09 23:36 UTC
I don’t think it’s at all true that MS supports the system in its current form.
Microsoft just took this case to the Supreme Court and essentially asked them to change the law. They instead delegated that task to congress.
The current form of the system makes large companies with deep pockets patent targets by companies who hold patents with no assets/products. Microsoft really isn’t in a position to enforce its own patents against other large software producers (mutually assured destruction problem), and isn’t in a position to enforce them against small firms either (cost of enforcement problem.) Although it does license patents and get some revenue, I’d be surprised if it gets enough revenue from patent licensing to cover the cost of filing and enforcement (which are not cheap.) MS, like most large companies, holds patents primarily defensively.
Brad Smith (Microsoft’s General Counsel) has had a lot to say on software patents.
http://www.microsoft.com/presspass/exec/bradsmith/03-10-05aeipatent…
Malxau: I might agree with you except for the fact that Microsoft actually makes more money off of forcing companies to license Android from them than it does off of Windows Phone 7. They same time they were in the Supreme Court arguing this case they were in court filing a law suit against Barnes and Noble for the Nook running Android. They cause as much of the problem as anyone.
According to the Citi analyst, MSFT made $150m from licensing patents related to Android to HTC. In this case, it had to pay out $290m, almost double, and instantly removed the feature from Office.
It’s true to say that MSFT plays the current game by the current rules. Under those rules, it’s not clear to me that MSFT is really winning in the game; but if it didn’t attempt to obtain license revenue from other companies, and continues to pay license fees to other companies, it would be doing a whole lot worse.
I know it’s a long read, but I think Brad’s reform proposals (see “Proposals to Strengthen the U.S. Patent System” in the previous post) aren’t that far from what developers really want. It’s not total abolition, but it would remove a lot of trivial patents and lottery lawsuits from the system.
malxau,
Well, I can’t say I read the whole thing. It sounds like he’s coming from the point of view that assumes software patents are even necessary.
While I agree the system is broken (it’s become even more evident since he wrote that piece), I really think we deserve a compelling explanation for software patents in the first place, since we did fine without them for many years.
“I’d like to talk today about reform in four areas:
• Ensuring high patent quality amidst increasing patent quantity;”
Ok
“• Curbing excessive litigation and litigation abuse;”
Many of us consider ANY litigation of this sort excessive. It is nothing like copyright infringement where one dev is using someone else’s code without permission.
“• Promoting international patent law harmonization; and”
Firstly, I don’t necessarily want the laws worldwide to be in harmony. It’s nice to have diverse countries where people can do things differently.
Secondly, if a global legal mono-culture is necessary, it’s very presumptuous that the US system should be the one to take over. Plenty of countries already do things better than the US.
Thirdly, if software patent monopolies are bad in the US, they’ll be worse when the legal monopoly is effective world-wide.
“• Increasing accessibility for individual inventors and small companies around the world.”
The fact that patents are expensive and inaccessible is the result of fundamental scalability issues with the patent model. In an expanding market, either through actual growth or from merging developers worldwide, there is exponentially more work to determine if any given invention is in fact unique.
Governments could make them cheaper by subsidizing them (I don’t know if we are already doing this), but then taxpayers would be paying government to grant private patent monopolies which serve to prohibit the free (as in freedom) development of software.
Talk about fixing the patent system to accommodate software developers seems to be jumping the gun. I think we ought to be entitled to solid reason that software patents are needed in the first place.
Currently the problem is that a developer needs to consider how things are done everywhere. If a developer resides in a jurisdiction where a patent doesn’t apply, they still must consider that a patent may apply in a different jurisdiction if they distribute software there. In theory a developer is expected to examine patents in literally every jurisdiction they distribute to, and arrange licenses if necessary in each, which is clearly absurd. This has always been problematic for companies like MSFT, but with digital distribution it’s becoming a problem for everyone.
Currently in the US the government takes patent filing fees and spends them outside of the patent system. This leaves the PTO underfunded and unable to review patents adequately, which is one of Brad’s complaints.
I agree on that, although I find it strange that many on the internet have jumped to the conclusion that software patents should not exist. Personally I’d find it strange if an algorithm in hardware can be patent protected but cannot be in software; and I wonder what distortions that would unleash on the market. A lot of this view seems to me based in the belief that software patents are not generally innovative and hence worthy of payment; but I’d question whether non-software patents are significantly more innovative than software patents. The problem, IMO, is large volumes of low value patents (intellectually), such as (ahem) XML editing.
malxau,
“If a developer resides in a jurisdiction where a patent doesn’t apply, they still must consider that a patent may apply in a different jurisdiction if they distribute software there. In theory a developer is expected to examine patents in literally every jurisdiction they distribute to, and arrange licenses if necessary in each, which is clearly absurd.”
It’s interesting that you highlighted an issue which would not be a problem if software patents were simply eliminated.
The existence of software patents in some jurisdictions should not rationalize the implementation of software patents in other jurisdictions. Software patents need to be considered on their own merit.
“Currently in the US the government takes patent filing fees and spends them outside of the patent system. This leaves the PTO underfunded and unable to review patents adequately, which is one of Brad’s complaints.”
I agree they’re underfunded. However the review costs are not fixed per developer, they actually increase exponentially as the pool of developers grows.
Say another country implements an identical system on an identical scale, which costs the same as well. Now these two countries want to merge/coordinate their patent systems for the reasons you mention (which should be procedurally trivial given that they are identical). Can you see that it’s necessarily going to require even more work for patent reviewers to do their jobs in a unified system which has doubled in size? How much is this extra work going to cost?
Now apply this escalating workload world-wide over dissimilar patent systems and the costs can only increase.
Is the work being done at the PTO actually productive? On a macro-economic scale, we’re all (indirectly) paying for the software patent filling fees, administrative attorney overhead, and let’s not forget the lawsuits. Isn’t it conceivable that our efforts might be better spent on more worthy endeavors?
“I agree on that, although I find it strange that many on the internet have jumped to the conclusion that software patents should not exist.”
Shouldn’t the burden be on those claiming a software patent system is needed?
“Personally I’d find it strange if an algorithm in hardware can be patent protected but cannot be in software; and I wonder what distortions that would unleash on the market.”
I don’t think algorithms should be patentable at all. Physical/Mechanical/Chemical Processes are not my domain, and I don’t have an opinion on those kinds of patents. But patents should not apply to purely intellectual disciplines like CS/mathematics/philosophy. The term “invention” is a stretch anyways.
“A lot of this view seems to me based in the belief that software patents are not generally innovative and hence worthy of payment;”
But I can be paid for my work without a patent monopoly. We are still the majority in fact.
“The problem, IMO, is large volumes of low value patents (intellectually), such as (ahem) XML editing.”
It is a problem, but I still want to know where is the public benefit that justifies handing out private monopolies on software ideas?
Algorithm in hardware is not protected. The specific implementation and schematic is protected. Software has copyright to protect specific implementations, hardware does not. A patent is copyright of the hardware world.
That’s why HTC have to pay 5 dollar per Android device to MS. To protect Microsoft from competitors.
They do support it in the current form. They want to add invalidation that was missing. And I doubt that they will succeed. Why? Because they know perfectly well that it’s not SCOTUS they have to be courting, but bribing congressmen(aka campaign contributions)
From your linked release: “Promoting international patent law harmonization”
Which is in essence other words for “We want software patents to be established around the world”
And don’t be naive, the defeat that Microsoft, IBM and a bunch of other companies suffered in EU is just one battle. The war is not over.
JAlexoid,
“‘The only saving grace for the US patent system today is that it has been very poorly enforced against small developers.’
I fear that Lodsys might prove that that statement will not be true for much longer.”
Software patent trolls have to be careful though. If they enforced their legal patent monopolies 100%, then the industry would grind to a halt and government would be forced to acknowledge that software patents are untenable.
On the other hand, if they don’t bring too much public attention to themselves, they can continue leaching the system indefinitely.
I wonder how ridiculous it has to become before the overlords will do anything about it?
Edited 2011-06-10 01:29 UTC
JAlexoid,
“And who’s one of the biggest supporters of that system? Microsoft! Sorry for the profanity, but Microsoft just got flung their own poo right in their face!”
I wasn’t aware that “Microsoft” was considered profanity, good to know.
Actually, this is all the Supreme Court’s fault. They have had two cases in front of them now that hinge on software patents. They had the option (at least in the Bilski case) to throw the cases out based solely on the fact that software shouldn’t be patentable. Software is only patentable because the the ninth circuit court who oversees patent cases decided it should be. Their ruling needs overturned. There is no law expressly permitting software patents, its all based on case law.
Perhaps not. If enough of these giant corporations start taking it up the ass from patent trolls, maybe they’ll buy some new laws that put the smackdown on software patents. Or, at least severely limit their scope.
At this rate we’ll find software having a vibrant economy .. outside the USA.
I can imagine the rest of the world being the only safe place for software innovation, use and trade.
If its not careful the USA will become an innovation unfriendly zone.
I haven’t used anything made by Microsoft since 2004 or 2005 and I dislike Microsoft like everyone but I think this sucks. The patent system itself needs a major revision.
The legal system has huge problem when it basically becomes a regulator or administrative agency.
Basically you have the patent office which grants patents. Their criteria is vague and depends a lot on judgment.
Yet, when patent violations occur, these issues head into the legal system with the patents treated as gold.
I’m not going to blame this on the courts per se as the legislative branch writes these rules. But the wording of congress is sufficiently vague, that they could have used it to ‘push’ the issue a different way.
patents are “presumed valid†and that “the burden of establishing invalidity†rests “on the party asserting such invalidity.â€
I personally hope congress rewords the law to make it clear that a patent can be overturned by a preponderance of the evidence.
That all said, Microsoft behaved really poorly in this case. First they worked with i4i… then they did their own thing.
Do you agree or disagree with this verdict, Thom?