[throwawaykf02]

> Microsoft shaking down Android vendors

Please can we stop saying this? I can write a whole essay on how licensing patents is the norm in tech industries, and how Microsoft (and Apple) are using patents exactly as they were meant to be, and so on.

But since you're a Google employee (IIRC), I'll just point out that it was Google that was actually convicted and made to pay 14 million for doing what you are accusing Microsoft of doing.

[magicalist]

This Ars Technica article[1] lists the five patents they were demanding ridiculously high license fees for. Please, by all means, explain how demanding the same fee they would for licensing Windows Phone itself[2] for such ridiculously terrible patents is exactly how the patent system is supposed to work.

Patent cross licensing is incredibly common in the tech world, but this was not an example of that. This was Microsoft taking the playbook from the RIAA and the porn industry and betting they can get a large chunk of money out of companies by setting the license fee at the perfect level so that it was safer to settle than to countersue.

[1] http://arstechnica.com/tech-policy/2011/03/long-battle-likel...

[2] http://arstechnica.com/tech-policy/2011/03/long-battle-likel...

edit: below, afsina provided an even more detailed look at the three patents that became key to the barnes and noble ITC complaint:

http://arstechnica.com/tech-policy/2012/02/the-three-patents...

[throwawaykf02]

>Please, by all means, explain how demanding the same fee they would for licensing Windows Phone itself[2] for such ridiculously terrible patents is exactly how the patent system is supposed to work.

1. Those are just 5 patents they asserted in that one lawsuit. The portfolio they actually license probably has hundreds and maybe even thousands in it. They only asserted these 5 because a) it's practically impossible to sue over more than a few patents, and b) they thought these were the likeliest to get B&N on.

2. I am not sure what the "ridiculously high license fees" were... Were they ever even revealed? To my knowledge, the actual terms of any of their Android deals is not known to this day, and the $10/phone figure is complete speculation. This is true of almost any IP licensing deal by any company in the world ever. These deals are typically closely guarded trade secrets. My hunch is, MS is actually licensing for a lot less than $10/phone, and is instead negotiating for a stronger commitment from manufacturer's on the Windows Phone front.

3. Patents give holders a right to sue others if they infringe. Infringers can try to avoid lawsuits by negotiating a license. Or they can argue that they don't infringe or the patent is invalid, which often (but not always) ends up in court. That is how the patent system was designed to work. Microsoft chose to use it by negotiating licenses for the most part. Apple chose to not license and used their right to sue instead. Now one may complain about the quality of the patents involved, but...

4. ...On what basis did you judge those patents to be "terrible"? Really, I am curious as to what you think the patent covers and why it's terrible. I ask because the default for tech media or HN is that all patents are "terrible" but when I drill down into it, most people are woefully uninformed about how they work. It's actually quite difficult to truly evaluate the quality of a patent. From a legal perspective, it requires reading not only the patent, but the entire file wrapper including all the cited prior art, the office actions and the applicant's responses. From a layman's perspective, judging the novelty of something, especially if it's old, is difficult because it's very difficult to envision the state of the art at the time of filing and appreciate what is being claimed; things too easily appear obvious in hindsight, and some of the patents on there are from 1994!

[magicalist]

You didn't address the actual point of contention here. How is asserting these patents in court, or using them to get an import ban via the ITC, an example of how the patent system is supposed to work? They cow a company with patents over things barely invented (B&N actually argued that they weren't invented at all, at least not by Microsoft) that should have never had a patent issued for them in the first place, and you argue that once they do agree to a patent license they are getting to license totally awesome things?

"Hate the player not the game" is not an excuse when the charge was "Microsoft shaking down Android vendors". The RIAA (and now the porn industry) was also granted the right to sue and recover up to $150,000 per infringement of their copyrighted works. Now, one might complain that the Copyright Act wasn't written in a world where individual songs could constitute an infringement act, nor did Congress intend the higher damages amount to apply to individuals not engaged in a profit-making venture, but...

In any case, you sound reticent to start reading the patents. Here's a good starting place: Barnes and Noble's response to Microsoft's ITC complaint: http://www.groklaw.net/pdf2/MSvB&Nanswer.pdf

Yes, the patents really are terrible.

[throwawaykf02]

> How is asserting these patents in court, or using them to get an import ban via the ITC, an example of how the patent system is supposed to work

I thought I did so in point 3.

(Edit: removed bit about copyright because it could quickly derail this thread into a copyright/piracy thread.)

>... (B&N actually argued that they weren't invented at all, at least not by Microsoft) that should have never had a patent issued for them in the first place,...

> Here's a good starting place: Barnes and Noble's response to Microsoft's ITC complaint: http://www.groklaw.net/pdf2/MSvB&Nanswer.pdf

> Yes, the patents really are terrible.

Really? You're going to take the defendant's word to show that the "patents really are terrible"? I'd like you to find a single defendant in a patent lawsuit who didn't think the asserted patents were terrible.

> ... you argue that once they do agree to a patent license they are getting to license totally awesome things?

No, they'll just get a license to do things covered by the patents that they were allegedly doing anyway. Said things may or may not be totally awesome. And if they're not very useful, why do them in the first place?

>In any case, you sound reticent to start reading the patents.

No, I actually did go and read the pertinent parts of the patents linked above. They're actually better than the really terrible ones I've seen from that era. But I cannot make an off-hand judgement on their overall quality because that would require reading the patents, and the file-wrapper, and the prior art, and...

But, wait. Did you read the patents? And the file-wrapper? And the prior art? Or are you just accepting an opinion given by hilariously biased sources?

[throwawaykf02]

OK, out of curiosity, I actually went ahead and read http://www.groklaw.net/pdf2/MSvB&Nanswer.pdf, specifically the parts where they address the patents being asserted.

Now, I'm usually used to reading office actions or reexamination-related documents, whereas this is a response to a lawsuit, so things may be different...

But I gotta say, wow, this looks really weak to me. Let me explain why.

Here's what I usually see when I see prior art presented against a patent: The argument first quotes the claim in question, and for each element in the claim, it cites one or more pieces of prior art, and then they quote (or at least identify via line numbers etc.) the relevant sections of the prior art reference and argue why it invalidates the claim or claim element.

The B&N document mostly just says, "Pfft, this patent covers nothing more than X, and X was already being done in 2000" without any reference to back it up. In only a few places do they cite actual prior art references, but again, they just throw the reference out there without any explanation as to why or how it is pertinent.

Again, like I said, this is not an office action but an answer to a complaint, and detailed arguments may not be part of these. It'd be great if a patent lawyer could weigh in.

[mda]

I would love to see that essay of yours. I think this issue is not enough said and he should not stop at all.

[throwawaykf02]

Not an essay, but did post a slightly more expansive comment just upthread :-)

[throwawaykf02]

Too late to edit, but as pointed out down-thread, I'd like to note that my use of the word "convicted" in this post was inaccurate, as this was a civil case. The correct wording should have been something along the lines of "A federal jury ruled in favor of Microsoft and ordered Google to pay 14 million in damages."