Guy Macon on Microsoft's claims of Linux Patent Infringement

Guy Macon wrote:
> chrisv wrote:
>>> Tim Smith wrote:
>>>
>>>> And chrisv comments without having read the thread, as usual.
>>
>> On what basis do you make that claim, Timmy?
>>
>> Perhaps, in your putrid little rat-brain, you feel that anyone
>> who does not side with Micro**** cannot be properly informed.
>
> Any chance I can convince the two of you to move the flamewar
> over to it's own thread and leave this one for discussing
> Microsoft's claims of Linux Patent Infringement?

Significant correction: Flamewars do not belong in Usenet at all.
Take it to email.

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[H]omer wrote:

>You're wasting your time with FUDenbusch. He'd argue black is white for
>the sake of der Führer Herr Ballmer and his bunch of reprobate goons.

One of my favorite lines from The Simpsons.

Homer to Mr Burns: You could have just asked me to come to your
office.

Mr Burns: I prefer the personal touch of hired goons.

On Jun 11, 8:30 pm, Erik Funkenbusch
wrote:
> On Mon, 11 Jun 2007 15:55:28 -0700, Dean G. wrote:
>
> > You seem to have a strange outlook on patent law, one that isn't
> > supported by case law.
>
> > Sound familiar ? It should, it is exactly what you told, Mr. Macon,
> > but his view point is far closer to US patnet law than yours.
>
> Coming from someone that makes very severe mistakes in regard to patent
> law, i'll take that with a grain of salt. See below.

Saw it, and you are wrong again, as usual.

>
> > so why don't you try to
> > explain why they would make such a huge deal about it if it were a
> > defensive issue ?
>
> Microsoft is trying to defend itself against patant lawsuits from all
> corners. By cross-licensing patents with everyone, including open source
> vendors, they reduce their patent liability surface.
>
> > ANy hlf-brained person would keep potential
> > liabilities quiet while they tried to shore up their defences. Only a
> > complete fool would advertise his weakness. Indeed, as the COO of MS,
> > Ballmer has a responsibility to his shareholders to do a better job.
> > Either that, or you are distorting the truth again, Eric. Which one is
> > it this time ?
>
> Your statement doesn't make any sense. Is that supposed to be english?
> What weakness are you referring to?

The same weakness you refered to just a moment ago as a "patent
liability surface".

>
> > In other news, SCO Souce is turning in record profits. Record lows (as
> > in zero revenue, and an operating loss) mind you, but records none the
> > less. I just thought you'd want to know.
>
> This is not SCO we're talking about. I know you all like to pretend it's
> the same thing, but it's not. Microsoft doesn't like patents any more than
> you do, but like the GPL using copyright (despite abhoring it) for it's
> defense, Microsoft is also using the patent system for its defense.
>
> >> Why should they? Unless they're actually going to sue someone, there's no
> >> reason to. And, as i've said numerous times, they won't sue anyone. This
> >> is a purely defensive move, not an offensive one.
>
> > The reason why is obvious. If they do not attempt to defend them, they
> > will lose their rights. Patents have a fairly short life time, and if
> > MS doesn't defend them now, they will essentially forfeit their
> > rights. That sounds like a bad strategey, but Ballmer has a history of
> > such, so maybe it is possible. Of course a shareholder lawsuit may be
> > in order, but that isn't my problem as I no longer own any MS stock.
>
> This is the big error I mentioned above. You don't lose your patent rights
> if you don't defend them. That's ridiculous. This is not trademark we're
> talking about here, which is the only form of IP where that is true.
>
> Because you seem to have no idea of how patents work, your entire argument
> must be questioned.

I'll go really slow for you this time Eric :

1. Patents have a limited life time. Fact. Deal with it.

2. The largest advantage a patent gives you is the ability to make,
use, and market the patented creation exclusively. This is what a
patent is, a limited monopoly.

3. If your competitors are using and marketing your patented
technology, and you do not take action, you have essentially forfeited
your patent rights through inaction.

That's all. I could add that trial damages are very limited if you do
not inform someone that their product infringes upon your patent, but
if you are not going to defend your patents at all, then this is
competely irrelevant.

Verstehen sie jetzt ?

>
> >> Prior art is not really a defense. Let's take the Eolas case, for
> >> instance. Despite having ample evidence of prior art, including the
> >> creator of the Viola browser (Pei Wei) willing to testify as to prior art,
> >> Microsoft still lost the case.


Let's take the Eolas case. MS claimed prior art, but the court ruled
that what MS claimed to be prior art was a different invention, and
thus NOT prior art of the patent MS was fighting. Again, you are
wrong, as usual.

>
> > The Supreme Court recently handed down an opion on patent law that may
> > well dimish this threat in the future. Also, there is a bit of talk on
> > patent reform. It seems that exactly cases like this one have upset
> > some congressmen, and many now believe that such patent troll firms
> > are a hinderance to American competitiveness.
>
> Are you forgetting WHO it was that got that decision made? That's right,
> Microsoft. Ever wonder why? Because they don't like patents any more than
> you do. But the fact remains, they have to have them to defend themselves
> in the current IP culture.

I agree with MS in this case, as did most of the OSS community. This
is very well documented on Groklaw, Slashdot, and other OSS-friendly
sites.

>
> > Finally, if a patent can be invalidated, then it is no longer a
> > threat, and prior art is indeed one means of invalidating a patent,
> > particularly if the prior art preceeded the patent by more than a
> > year.
>
> The patent office seldom invalidates patents. It takes a virtual act of
> god to get them to re-evaluate one. That's part of the problem.

This is one of the things being re-considered. Already they are making
it more difficult such patents, and I believe there will be other
structural changes in the system in the near future.

>
> >> What's more, is that code that accomplishes a basic function may not be
> >> able to simply be rewritten. It's not like copyright where you can just
> >> write new code to do the same thing. It's what the thing does that's
> >> patented, regardless of how it's implemented.
>
> > That isn't necessarily true, and you know it.
>
> It, of course, depends on the patent, but in most cases it is true. Take,
> for example, the GIF patent, or the MP3 patent. No getting around those
> things because they are algorithms, not code.

PNGs and Oggs work fine for me. I guess your definition of "getting
around" something is a very limited one. PNGs are superior ro GIFs in
every way except they don't do animation. Ogg Vorbis files are
technically better than MP3's.


>
> > Indeed, ideas are
> > specifically prohibitted from being patented. There are a few, very
> > very few cases, where only one particular method was available, and
> > there was no work around, but all of these cases were for minor
> > issues, and simple design changed obviated the need for them.
>
> Bull****. I just gave two examples above that the open source community
> railed against for years (and mp3 is still a problem).

MP3's are a temporary problem at most, much like LZF and GIF. There
are already better alternatives that are not encumbered.

>
> > So the
> > code wasn't re-written to do the same thing, the code was re-written
> > to do something else at least as useful. Are we going to talk about
> > XOR and cursors again ? Or do you have anything that might actually be
> > considered useful instead of cosmetic ?
>
> So where's that rewritten MP3 code? And don't mention ogg, because a) it
> can't play MP3's, and b) Fraunhoffer claims that ogg is likely to still
> violate their patents.

Fraunhoffer's claims are meaningless until a court agrees with them.
Until such a time, they are naught but noise. As for ogg, I'll say the
same thing back : MP3 codecs cannot play oggs. MP3 codecs cannot play
midi files. Who cares ? No one except you. Obviously codecs are
designed to decode a specific type of data, and saying that your
competitors codec can't handle your data is hypocritical and/or
ignorant.

> >>> Microsoft's decision to not reveal what parts of Linux are
> >>> allegedly infringing is quite telling.
>
> >> No it's not. It's standard procdure. Any big company would do the same.
>
> > Most big companies do mention anything at all unless they are going to
> > sue. Saying that Microsofts actions are standard procedure is just
> > ridiculous.
>
> Most companies don't have the dislike of patents that Microsoft does.

Are you dizzy from that about face ?

>
> >> That's simply not true. There are all kinds of cases where submarine
> >> patents have been upheld.
>
> > He didn't say they weren't upheld, he said there must be notice of
> > infringement before the case, or the damages available at trial were
> > limited. Please, try to keep up Eric.
>
> Upheld, and damages awarded. Again, the Eolas case is a good example.

Again, Eolas case is a very bad example, as the court rules that Viola
was NOT prior art. The patent in the Eolas case was upheld because MS
was UNABLE to present evidence of prior art.

>
> >> It's unlikely the supremes would hear such a case. It's civil law, not
> >> criminal.
>
> > The Supreme Court hears all kinds of cases, Eric. They handle both
> > civil and criminal cases.
>
> That's why I said it was unlikely, not impossible. The supreme court tends
> to deal only with cases that need clarification of law, and it's unlikely
> that this would be the case as the law is pretty clear. Criminal cases get
> heard more often because civil liberties are at risk.
>
> > that said, most cases do no go to the
> > Supreme Court, and the Supreme Court will not hear most of the ones
> > appealed to them.
>
> Precisly my point.
>
> > They do risk a public backlash, as well as
> > Congressional action on patent reform. Add to that a possible
> > President in a few year that actually has the balls to enforce the
> > settlement agreement of their anti-trust case, and Microsoft would be
> > under more pressure than any sane COO would like.
>
> Bull. Patent reform will happen when it's in the best interest of the
> corporate sponsors of the elected officials.
>
> >> You mean those same competitors that Microsoft has had patent cross
> >> licensing deals with for years?
>
> > Some are the same, but of course these cross-licensing agreements
> > often only cover a portion of a companies IP. It is not unusual for
> > companies in such agreements to threaten or take legal action over non-
> > covered IP. In addition, the OIN has patents that are not covered by
> > any such agreement.
>
> You assume that Microsoft would be in violation of any given patent. I
> find it much more likely that Linux infringes corporate patents than
> Microsoft infringes any in the OIN that are not already part of a cross
> licensing deal.
>
> >> Good luck with that, since Microsoft is already a licensee of most patents
> >> from their large competitors.
>
> > As noted above, the agreements do not cover all of OIN's patents. Most
> > will not cut it in a court of law, as it only takes one single
> > violation to get an injunction. One day of such an injunction would
> > result in a terrible stock-holder backlash, not to mention a serious
> > reduction in Microsoft's market-cap.
>
> Are you suggesting that All of OIN's patents apply to Microsoft?

No, I'm suggesting that it is very probable that at least one does. It
only takes one. Five could be nearly catastrophic. Think RIM and NDP.

>
> >> I'd say the odds are about zero, but even if they did, that's copyright not
> >> patent infringement and that's easy to solve.
>
> > You'r opinion of the odds isn't exactly the most unbiased source, so
> > I'll ignore that part.
>
> I made that statement based on the fact that nobody found any such code in
> the code that leaked onto the internet several years ago. I guarantee you
> hundreds, if not thousands of people were scouring the code looking for it.
>
> > What interests me is the "easy to solve" part.
> > How easy it is to solve is very much dependent upon how much is in
> > there. MS is notable slow with their releases, and they may well be
> > under an injunction until such an issue is "solved". In other word, it
> > is much like a tornado hitting your house. The problem is easy to
> > solve (you rebuild the house, or buy a different one), but the damage
> > is already done. As mentioned above, even if the problem is fixed in
> > 24 hours, MS loses quite a bit.
>
> It's unlikely that any judge would issue an injunction that did not give
> them proper time to address the issue. What's more, Microsoft could likely
> have any such injunctions stayed on appeal for quite some time based on the
> amount of injury such an injunction would cause them and how little it
> would cause the plaintiff.

Actually, because patents are time-limited, the stays are not as easy
to get as you may think. One could very well argue that a key OS
technology that allowed a competitor to maintain 90+% of the market is
causing the patent owner irrepparable harm in terms of market share
(one of your favorite terms.)

I'll refer you to the case of RIM and NDP. RIM was forced into a very
unfavorable settlement to avoid the imposition of such an injunction.
This is true even though all 5 of the patents were later shown to be
invalid. Exactly because patents are time-limited monopolies means
that staying a verdict of infringement is problematic, as the court
can never extend the patent. What is the legal definition of
irreparable harm ? In the case of a patent, how do you rebut such a
claim ?

Dean G.

Dean G. wrote:
>
>Erik Funkenbusch wrote:
>
>> It's unlikely that any judge would issue an injunction that did
>> not give them proper time to address the issue. What's more,
>> Microsoft could likely have any such injunctions stayed on
>> appeal for quite some time based on the amount of injury such
>> an injunction would cause them and how little it would cause
>> the plaintiff.
>
>Actually, because patents are time-limited, the stays are not as easy
>to get as you may think. One could very well argue that a key OS
>technology that allowed a competitor to maintain 90+% of the market is
>causing the patent owner irrepparable harm in terms of market share
>(one of your favorite terms.)
>
>I'll refer you to the case of RIM and NDP. RIM was forced into a very
>unfavorable settlement to avoid the imposition of such an injunction.
>This is true even though all 5 of the patents were later shown to be
>invalid. Exactly because patents are time-limited monopolies means
>that staying a verdict of infringement is problematic, as the court
>can never extend the patent. What is the legal definition of
>irreparable harm ? In the case of a patent, how do you rebut such a
>claim ?

I can add another example from personal experience. I was a lead
toy developer for Mattel, leading a team of 20 (5 hardware, 15
software) engineers. The reality of designing toys for Mattel is
that some of them will result in accusations of patent infringement
by Hasbro. Then again, Hasbro gets the same tratment from Mattel...
In most of these cases, the lawyers on the accusing side pretty much
give up once they have made the other side miss Christmas. Not that
they couldn't pursue it further and win, but the first 20% of the
legal effort does 80% of the harm to the competitor. If it really
was true that "no judge would issue an injunction that did not give
them proper time to address the issue" or that they could "have
any such injunctions stayed on appeal for quite some time" this
strategy would not work. What makes it work so well is what
happens if you decide to keep going down the path of making the
allegedly infringing toy for Christmas and a judge later issues
an injunction; that would result in a warehouse full of enough
toys to stock every Wal-Mart and Toys "R" Us in the US, all
unsellable, and with a factory that is making another 100,000
toys per hour shutting down with no time to retool in time for
Christmas. So they fold -- unless they are 99%+ sure that they
will win if it goes to court.

If Microsoft had anything other than FUD, they would tell us all
what parts of Linux infringe and what patents they infring upon.
The way they would tell us this is by filing a lawsuit. The fact
that they instead went with an announcement lacking that information
shows that this is just one more FUD attempt.

The only unresolved question is whether Funkenbusch's masters will
reward him for trying hard in the face of adversity or punish him
for posting weak arguments and getting his arse handed to him in a
sling by some EE.

BTW, if anyone is interested, I know where I can lay my hands on
400 metric tons of Jar-Jar Binks dolls, cheap...

--
Guy Macon

Guy Macon wrote:
>
.... snip ...
>
> The only unresolved question is whether Funkenbusch's masters will
> reward him for trying hard in the face of adversity or punish him
> for posting weak arguments and getting his arse handed to him in a
> sling by some EE.

Maybe we should make some allowance for him, seeing that patent law
is not international, but national.

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