Guy Macon on Microsoft's claims of Linux Patent Infringement

hohenseerick-at-yahoo.com wrote:

>Microsoft is shaking down Linux implementers with a fee for using
>Linux because Microsoft claims Linux harbors 235 infringements of
>Microsoft-owned software patents.

For some strange reason (I think we can guess why) Microsoft
refuses to disclose *which* patents Linux allegedly infringes
on.

Could it be that they know that within 24 hours replacement
code that doesn't infringe will be written? Or that within
48 hours slashdot users will find prior art that invalidates
most if not all of those patents?

Microsoft's decision to not reveal what parts of Linux are
allegedly infringing is quite telling. A basic principle of
patent law is that infringer must be given a chance to stop
infringing. If the patent holder doesn't give them this chance,
the damages the patent holder can claim are severely limited.

Also, if Microsoft actually sues instead of just blustering,
they risk the case going all the way to the supreme court for
a final decision as to whether algorithms can be patented.
This is a huge risk for Microsoft; if they lose that one they
won't have any valid patents left at all.

In addition, the Open Invention Network which holds patents for
many of Microsoft's biggest competitors, holds over a hundred
patents on fundamental technologies underlying essential aspects
of Microsoft's software. If Microsoft attempts to sue Linux users,
developers, or distributors, the OIN has vowed to retaliate by
suing Microsoft. This would open Microsoft to having an unbiased
third party go through their source code looking for infringement.
What are the odds that some of the thousands of microserfs who
wrote that code "borrowed" from the easy-to-get Linux source code?
And if the rumors of Microsoft losing the source code for part of
Windows are true, they may be ordered by the court to stop using
the object code for those parts of Windows.

"Can you get a list of which ones? Before that, it's just
FUD, and there's not a whole lot I can say or do. Is there
prior art? Are they trivial and obvious to one skilled in
the art? Would we need to work around them? We don't know,
because all I've heard so far is just FUD.
If MS actually _wanted_ us to not infringe their patents,
they'd tell us. Since they don't, that must mean that
they actually prefer the FUD." -Linus Torvalds

(FUD = Fear, Uncertainty, and Doubt -- a sales or marketing
strategy of disseminating negative but vague or inaccurate
information on a competitor's product)


--
Guy Macon

On Mon, 11 Jun 2007 18:48:35 +0000, Guy Macon wrote:

You seem to have a strange outlook on patent law, one that isn't supported
by case law.

> hohenseerick-at-yahoo.com wrote:
>
>>Microsoft is shaking down Linux implementers with a fee for using
>>Linux because Microsoft claims Linux harbors 235 infringements of
>>Microsoft-owned software patents.

First, I don't see Microsoft demanding fees, they're looking instead for
patent cross licensing.

> For some strange reason (I think we can guess why) Microsoft
> refuses to disclose *which* patents Linux allegedly infringes
> on.

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.

> Could it be that they know that within 24 hours replacement
> code that doesn't infringe will be written? Or that within
> 48 hours slashdot users will find prior art that invalidates
> most if not all of those patents?

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.

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.

> 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.

> A basic principle of
> patent law is that infringer must be given a chance to stop
> infringing. If the patent holder doesn't give them this chance,
> the damages the patent holder can claim are severely limited.

That's simply not true. There are all kinds of cases where submarine
patents have been upheld.

> Also, if Microsoft actually sues instead of just blustering,
> they risk the case going all the way to the supreme court for
> a final decision as to whether algorithms can be patented.
> This is a huge risk for Microsoft; if they lose that one they
> won't have any valid patents left at all.

It's unlikely the supremes would hear such a case. It's civil law, not
criminal.

> In addition, the Open Invention Network which holds patents for
> many of Microsoft's biggest competitors, holds over a hundred
> patents on fundamental technologies underlying essential aspects
> of Microsoft's software.

You mean those same competitors that Microsoft has had patent cross
licensing deals with for years?

> If Microsoft attempts to sue Linux users,
> developers, or distributors, the OIN has vowed to retaliate by
> suing Microsoft.

Good luck with that, since Microsoft is already a licensee of most patents
from their large competitors.

> This would open Microsoft to having an unbiased
> third party go through their source code looking for infringement.
> What are the odds that some of the thousands of microserfs who
> wrote that code "borrowed" from the easy-to-get Linux source code?

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.

> And if the rumors of Microsoft losing the source code for part of
> Windows are true, they may be ordered by the court to stop using
> the object code for those parts of Windows.

That's ridiculous. The only code they claimed was lost was old Windows 95
code.

Erik Funkenbusch wrote:
>On Mon, 11 Jun 2007 18:48:35 +0000, Guy Macon wrote:
>
>You seem to have a strange outlook on patent law, one that isn't supported
>by case law.

Actually his article is fairly well informed.

>> hohenseerick-at-yahoo.com wrote:
>>
>>>Microsoft is shaking down Linux implementers with a fee for using
>>>Linux because Microsoft claims Linux harbors 235 infringements of
>>>Microsoft-owned software patents.
>
>First, I don't see Microsoft demanding fees, they're looking instead for
>patent cross licensing.

They have not said that. They have indicated they are
not interested in sueing anyone (which would almost
certainly backfire on them).

>> For some strange reason (I think we can guess why) Microsoft
>> refuses to disclose *which* patents Linux allegedly infringes
>> on.
>
>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.

It is purely offensive, in two senses of the word. It
is a FUD attack on Open Source Software, and it stinks.

And they wouldn't *dare* sue anyone!

>> Could it be that they know that within 24 hours replacement
>> code that doesn't infringe will be written? Or that within
>> 48 hours slashdot users will find prior art that invalidates
>> most if not all of those patents?
>
>Prior art is not really a defense.

Prior art is an absolute defense. You cannot maintain a
patent if there is prior art. If sued for patent
infringement the first line of defense is to invalidate
the patent, and of course producing prior art is the
easiest way to do that.

>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.

You are mistaken. Microsoft and others presented the US
Patent and Trademark Office with what they *claimed* was
prior art. On full re-examination the USPTO determined
that the claimed prior art was not the same as the
invention the Eolas patent covered, and re-issued the
patent.

If Microsoft had indeed presented "ample evidence of
prior art", they would have won.

>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.

In the particular instance of the Eolas patent, a
software work around has been implemented to avoid
paying royalty fees.

>> 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.

Sure, when they don't have a leg to stand on, what else
can the do? (You don't suppose being honest is an
option???)

>> A basic principle of
>> patent law is that infringer must be given a chance to stop
>> infringing. If the patent holder doesn't give them this chance,
>> the damages the patent holder can claim are severely limited.
>
>That's simply not true. There are all kinds of cases where submarine
>patents have been upheld.

The patents are upheld, yes. But damages do not apply
until an infringer is notified of the infringement.

>> Also, if Microsoft actually sues instead of just blustering,
>> they risk the case going all the way to the supreme court for
>> a final decision as to whether algorithms can be patented.
>> This is a huge risk for Microsoft; if they lose that one they
>> won't have any valid patents left at all.
>
>It's unlikely the supremes would hear such a case. It's civil law, not
>criminal.

What? You think the US Supreme Court does not typically
hear cases involving civil law???? That is absurd!

>> In addition, the Open Invention Network which holds patents for
>> many of Microsoft's biggest competitors, holds over a hundred
>> patents on fundamental technologies underlying essential aspects
>> of Microsoft's software.
>
>You mean those same competitors that Microsoft has had patent cross
>licensing deals with for years?

Sony, Redhat, IBM, NEC, Philips and Novell.

That would make no difference if the specific patent is
not covered.

>> If Microsoft attempts to sue Linux users,
>> developers, or distributors, the OIN has vowed to retaliate by
>> suing Microsoft.
>
>Good luck with that, since Microsoft is already a licensee of most patents
>from their large competitors.

"Most" is not all. That *is* the point of patent
litigation strategies such as this. It doesn't require
all, it only requires enough to tie someone up in court
for years at the cost of millions of dollars.

>> This would open Microsoft to having an unbiased
>> third party go through their source code looking for infringement.
>> What are the odds that some of the thousands of microserfs who
>> wrote that code "borrowed" from the easy-to-get Linux source code?
>
>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.

It would not be limited to copyright any more than would
the claims that Microsoft is making.

>> And if the rumors of Microsoft losing the source code for part of
>> Windows are true, they may be ordered by the court to stop using
>> the object code for those parts of Windows.
>
>That's ridiculous. The only code they claimed was lost was old Windows 95
>code.

Ah, you are correct.

--
Floyd L. Davidson
Ukpeagvik (Barrow, Alaska) floyd-at-apaflo.com

Hi Eric,

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.

>
> > hohenseer...@yahoo.com wrote:
>
> >>Microsoft is shaking down Linux implementers with a fee for using
> >>Linux because Microsoft claims Linux harbors 235 infringements of
> >>Microsoft-owned software patents.
>
> First, I don't see Microsoft demanding fees, they're looking instead for
> patent cross licensing.

No, but they are threatening. OF course you are a complete corporate
MS *****, as anyone can tell from your posts, so why don't you try to
explain why they would make such a huge deal about it if it were a
defensive issue ? 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 ?

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.

>
> > For some strange reason (I think we can guess why) Microsoft
> > refuses to disclose *which* patents Linux allegedly infringes
> > on.
>
> 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.


>
> > Could it be that they know that within 24 hours replacement
> > code that doesn't infringe will be written? Or that within
> > 48 hours slashdot users will find prior art that invalidates
> > most if not all of those patents?
>
> 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.

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.

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.

>
> 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. 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. 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 ?

>
> > 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.

>
> > A basic principle of
> > patent law is that infringer must be given a chance to stop
> > infringing. If the patent holder doesn't give them this chance,
> > the damages the patent holder can claim are severely limited.
>
> 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.


>
> > Also, if Microsoft actually sues instead of just blustering,
> > they risk the case going all the way to the supreme court for
> > a final decision as to whether algorithms can be patented.
> > This is a huge risk for Microsoft; if they lose that one they
> > won't have any valid patents left at all.
>
> 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 said, most cases do no go to the
Supreme Court, and the Supreme Court will not hear most of the ones
appealed to them. 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.


>
> > In addition, the Open Invention Network which holds patents for
> > many of Microsoft's biggest competitors, holds over a hundred
> > patents on fundamental technologies underlying essential aspects
> > of Microsoft's software.
>
> 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.

>
> > If Microsoft attempts to sue Linux users,
> > developers, or distributors, the OIN has vowed to retaliate by
> > suing Microsoft.
>
> 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.

>
> > This would open Microsoft to having an unbiased
> > third party go through their source code looking for infringement.
> > What are the odds that some of the thousands of microserfs who
> > wrote that code "borrowed" from the easy-to-get Linux source code?
>
> 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. 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.

>
> > And if the rumors of Microsoft losing the source code for part of
> > Windows are true, they may be ordered by the court to stop using
> > the object code for those parts of Windows.
>
> That's ridiculous. The only code they claimed was lost was old Windows 95
> code.

Either you don't know, or you lie, a rather fitting way for one such
as yourself to end a post.

http://www.microsoft.com/presspass/p...owssource.mspx

>From the mouth of the horse itself :
"REDMOND, Wash., Updated, Feb. 20, 2004 - On Thursday, February 12,
Microsoft became aware that portions of the Microsoft Windows 2000 and
Windows NT 4.0 source code were illegally made available on the
Internet."

Dean G.

Dean G. writes:
> Either you don't know, or you lie, a rather fitting way for one such
> as yourself to end a post.

> http://www.microsoft.com/presspass/p...owssource.mspx

By "lost" he means that they can't find it anymore, not that it became
public. Rather pathetic, really.
--
John Hasler
john-at-dhh.gt.org
Dancing Horse Hill
Elmwood, WI USA

On Mon, 11 Jun 2007 15:55:28 -0700, Dean G. wrote:

> Hi Eric,
>
> 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.

>> First, I don't see Microsoft demanding fees, they're looking instead for
>> patent cross licensing.
>
> No, but they are threatening.

How is it a threat to say "I won't sue you"? They're saying they believe
something, and that they're not going to do anything about it, but if you
want to be copacetic, then sign a cross licensing agreement.

> OF course you are a complete corporate MS *****, as anyone can tell from
> your posts

Nice ad-hominem. Why don't you address the points instead.

> 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?

> 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.

>> 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.
>
> 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.

> 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.

>> 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.

> 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).

> 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.

>>> 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.

>> 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.

>> 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?

>> 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.

But, that's all just speculation since there's no indication of any such
code, nor has anyone accused Microsoft of having such code.

>>> And if the rumors of Microsoft losing the source code for part of
>>> Windows are true, they may be ordered by the court to stop using
>>> the object code for those parts of Windows.
>>
>> That's ridiculous. The only code they claimed was lost was old Windows 95
>> code.
>
> Either you don't know, or you lie, a rather fitting way for one such
> as yourself to end a post.
>
> http://www.microsoft.com/presspass/p...owssource.mspx

That's nice, but perhaps you'd like to talk about what the original poster
was referring to. He was referring to Microsoft claiming in the DR-DOS
case that they no longer had the code to older versions of Windows 95 for
inspection.

What possible way could your brain think your link was somehow relevant to
what he was talking about?

On Mon, 11 Jun 2007 14:33:29 -0800, Floyd L. Davidson wrote:

> Erik Funkenbusch wrote:
>>On Mon, 11 Jun 2007 18:48:35 +0000, Guy Macon wrote:
>>
>>You seem to have a strange outlook on patent law, one that isn't supported
>>by case law.
>
> Actually his article is fairly well informed.

I disagree.

>>First, I don't see Microsoft demanding fees, they're looking instead for
>>patent cross licensing.
>
> They have not said that. They have indicated they are
> not interested in sueing anyone (which would almost
> certainly backfire on them).

They haven't said so, but their actions are quite clear. They're seeking
"you scratch my back, i scratch yours" deals.

>>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.
>
> It is purely offensive, in two senses of the word. It
> is a FUD attack on Open Source Software, and it stinks.
>
> And they wouldn't *dare* sue anyone!

They don't *WANT* to sue anyone. All you need is to look back to 1991 when
Bill Gates was publicly criticizing the patent system. They don't like
patents, but are forced to use them to defend themselves. They have never,
not once, sued *ANYONE* for patent infringement where they were not sued by
someone else first.

>>Prior art is not really a defense.
>
> Prior art is an absolute defense. You cannot maintain a
> patent if there is prior art. If sued for patent
> infringement the first line of defense is to invalidate
> the patent, and of course producing prior art is the
> easiest way to do that.

It takes years to get a patent overturned. Any lawsuit will likely be done
and gone before that happens, so no... that's not your first line of
defense.

>>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.
>
> You are mistaken. Microsoft and others presented the US
> Patent and Trademark Office with what they *claimed* was
> prior art. On full re-examination the USPTO determined
> that the claimed prior art was not the same as the
> invention the Eolas patent covered, and re-issued the
> patent.
>
> If Microsoft had indeed presented "ample evidence of
> prior art", they would have won.

Then you wouldn't mind providing references to this. It didn't happen as
you suggest. In fact, the judge refused to hear the testimony at all.
That's one of the reasons Microsoft has been fighting to have prior art
gain more credence in lawsuits such as the recent supreme court case.

Now, AFTER the lawsuit, microsoft managed to get the patent re-examined,
and guess what? It was found to be invalid.

http://www.eweek.com/article2/0%2C18...43839%2C00.asp
http://www.eweek.com/article2/0,1895,1737809,00.asp

Now, please explain to me how it is that the Eolas patent was upheld?

>>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.
>
> In the particular instance of the Eolas patent, a
> software work around has been implemented to avoid
> paying royalty fees.

Yes, a workaround that no longer does what the patent covered, in effect
removing the functionality covered by the patent. That's not rewriting to
do the same thing differently, it's not doing it at all.

>>> 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.
>
> Sure, when they don't have a leg to stand on, what else
> can the do? (You don't suppose being honest is an
> option???)

What makes you think they're being dishonest? Just because they don't want
to committ themselves to a course of action they don't want to follow?

>>That's simply not true. There are all kinds of cases where submarine
>>patents have been upheld.
>
> The patents are upheld, yes. But damages do not apply
> until an infringer is notified of the infringement.

If that were true, Eolas wouldn't have won 522 Million dollars.

>>It's unlikely the supremes would hear such a case. It's civil law, not
>>criminal.
>
> What? You think the US Supreme Court does not typically
> hear cases involving civil law???? That is absurd!

The key word there is "typically". They tend to hear cases that require
legal clarification, civil cases are typically not that important.

>>> In addition, the Open Invention Network which holds patents for
>>> many of Microsoft's biggest competitors, holds over a hundred
>>> patents on fundamental technologies underlying essential aspects
>>> of Microsoft's software.
>>
>>You mean those same competitors that Microsoft has had patent cross
>>licensing deals with for years?
>
> Sony, Redhat, IBM, NEC, Philips and Novell.

All of which (other than perhaps Red Hat) have cross licensing agreements.

> That would make no difference if the specific patent is
> not covered.

If. How many of OIN's patents are not covered by a MS Cross licensing
agreement. Do you know?

>>Good luck with that, since Microsoft is already a licensee of most patents
>>from their large competitors.
>
> "Most" is not all. That *is* the point of patent
> litigation strategies such as this. It doesn't require
> all, it only requires enough to tie someone up in court
> for years at the cost of millions of dollars.

Microsoft claims 250+ patents. OIN doesn't even have that many patents.

>>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.
>
> It would not be limited to copyright any more than would
> the claims that Microsoft is making.

Huh? The claim was that Microsoft copied code from open source, that's
copyright.

Erik Funkenbusch writes:
> How is it a threat to say "I won't sue you"? They're saying they believe
> something, and that they're not going to do anything about it, but if you
> want to be copacetic, then sign a cross licensing agreement.

If they are not going to sue there is no reason for them to say anything
and there is no reason for anyone to sign a licensing agreement.

> You don't lose your patent rights if you don't defend them.

You can lose your right to damages for past infringment. If you wait too
long the patent expires.

> 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.

The judge is required by law to presume irreparable damage to the copyright
owner.
--
John Hasler
john-at-dhh.gt.org
Dancing Horse Hill
Elmwood, WI USA

Erik Funkenbusch wrote:
>On Mon, 11 Jun 2007 14:33:29 -0800, Floyd L. Davidson wrote:
>>>First, I don't see Microsoft demanding fees, they're looking instead for
>>>patent cross licensing.
>>
>> They have not said that. They have indicated they are
>> not interested in sueing anyone (which would almost
>> certainly backfire on them).
>
>They haven't said so, but their actions are quite clear. They're seeking
>"you scratch my back, i scratch yours" deals.

It's FUD. Nothing more, nothing less. Nobody is
scratching anyone's back unless it is out of fear.

>>>Prior art is not really a defense.
>>
>> Prior art is an absolute defense. You cannot maintain a
>> patent if there is prior art. If sued for patent
>> infringement the first line of defense is to invalidate
>> the patent, and of course producing prior art is the
>> easiest way to do that.
>
>It takes years to get a patent overturned. Any lawsuit will likely be done
>and gone before that happens, so no... that's not your first line of
>defense.

It is what any legal defense will start with.

>>>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.
>>
>> You are mistaken. Microsoft and others presented the US
>> Patent and Trademark Office with what they *claimed* was
>> prior art. On full re-examination the USPTO determined
>> that the claimed prior art was not the same as the
>> invention the Eolas patent covered, and re-issued the
>> patent.
>>
>> If Microsoft had indeed presented "ample evidence of
>> prior art", they would have won.
>
>Then you wouldn't mind providing references to this. It didn't happen as
>you suggest. In fact, the judge refused to hear the testimony at all.
>That's one of the reasons Microsoft has been fighting to have prior art
>gain more credence in lawsuits such as the recent supreme court case.
>
>Now, AFTER the lawsuit, microsoft managed to get the patent re-examined,
>and guess what? It was found to be invalid.
>
>http://www.eweek.com/article2/0%2C18...43839%2C00.asp
>http://www.eweek.com/article2/0,1895,1737809,00.asp
>
>Now, please explain to me how it is that the Eolas patent was upheld?

Would you please explain why you are posting such
ignorant statements? Did you read the URLs you cite?
They do *not* say what you are claiming. First, no
court case is finished until the appeals are completed.
Second, no preliminary rulings or injunctions (by courts
or the USPTO are the end of any case). But those are
what you are citing.

That last action in that case was not in 2004, the dates
on the two URLs you cite. It was last month, in 2007.

You claim the USPTO sided with Eolas against Microsoft
"now, after the lawsuit".

Here is a chronology of that case:

1994 Patent applied for.

1994 Microsoft declined an offer to license
the technology.

Nov 1998 Patent issued to Univ. of California,
(Licensed by Eolas.)

1999 Suit filed by Eolas against Microsoft.

Aug 2003 Eolas wins $512M award.

Oct 2003 Eolas patent is challenged with prior
art claims by W3C and others.

Jan 2004 District Court upholds earlier decision.

Feb 2004 USPTO issues preliminary finding that
there is evidence of prior art.

Mar 2004 USPTO opens re-examination of Eolas
patent. Standard procedure is to
issue a notice that the patent is
rejected, and the applicant is then
required to re-apply and defend the
application.

May 2004 Eolas presents their side.

Jun 2004 Microsoft appeals.

Mar 2005 Appeals court upholds part, remands
part for another jury trial. Microsoft
appeals to US Supreme Court

Oct 2005 US Supreme court refuses to hear appeal

Sept 27, 2005 The USPTO issue their ruling, stating
the claims of prior are are in fact
not the same thing, and that it was
not developed prior to the Eolas
technology. The patent is re-issued
to Eolas.

May 2007 USPTO issues a similar patent to
Microsoft and will allow MS to argue
they own the rights.


For the September 2005 USPTO ruling, see:

http://patentlaw.typepad.com/patent/...entability.pdf

The retrial is scheduled for July in Chicago, where
previously excluded evidence of prior art will be allow
to be seen by a jury.

Obviously this is not over (though Eolas has absolutely
won the issue as far as international rights are
concerned). Also just as obvious is that the *entire*
battle is over prior art. Nothing else is at question.

>>>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.
>>
>> In the particular instance of the Eolas patent, a
>> software work around has been implemented to avoid
>> paying royalty fees.
>
>Yes, a workaround that no longer does what the patent covered, in effect
>removing the functionality covered by the patent. That's not rewriting to
>do the same thing differently, it's not doing it at all.

That is not the way anyone else is describing it.

http://blogs.technet.com/msrc/archiv...29/423560.aspx

>>>That's simply not true. There are all kinds of cases where submarine
>>>patents have been upheld.
>>
>> The patents are upheld, yes. But damages do not apply
>> until an infringer is notified of the infringement.
>
>If that were true, Eolas wouldn't have won 522 Million dollars.

You lie like a rug. Microsoft refused in 1994 to pay
royalties. The law suit was not filed for five years!

>>>It's unlikely the supremes would hear such a case. It's civil law, not
>>>criminal.
>>
>> What? You think the US Supreme Court does not typically
>> hear cases involving civil law???? That is absurd!
>
>The key word there is "typically". They tend to hear cases that require
>legal clarification, civil cases are typically not that important.

Bull**** son. You make statement that have *no* basis
in fact.

>>>> In addition, the Open Invention Network which holds patents for
>>>> many of Microsoft's biggest competitors, holds over a hundred
>>>> patents on fundamental technologies underlying essential aspects
>>>> of Microsoft's software.
>>>
>>>You mean those same competitors that Microsoft has had patent cross
>>>licensing deals with for years?
>>
>> Sony, Redhat, IBM, NEC, Philips and Novell.
>
>All of which (other than perhaps Red Hat) have cross licensing agreements.

So? The point is *still*, despite your wailing
dishonest blustering proclamations, that the OIN owns
rights to patents which Microsoft does not have any
right to use. The fact that Microsoft does have rights
some patents is a non sequitur.

You fail to understand that those company's have
*funded* OIN. That does not mean the own any or all
patents that are controlled by OIN. OIN *buys* patents,
which they then own outright. They do enter into
royalty agreements, but the price is agreeing not to sue
Open Source Software over *any* patents.

>> That would make no difference if the specific patent is
>> not covered.
>
>If. How many of OIN's patents are not covered by a MS Cross licensing
>agreement. Do you know?

*None* of them are covered by any cross licensing
agreement. Not one. (Such an agreement between OIN and
Microsoft would be headline news!) But your logic is
flawed. It only needs be that *one* patent is
infringed.

"We believe it's highly likely that Microsoft would
infringe some of our patents,"
Jerry Rosenthal, CEO of OIN

>>>Good luck with that, since Microsoft is already a licensee of most patents
>>>from their large competitors.
>>
>> "Most" is not all. That *is* the point of patent
>> litigation strategies such as this. It doesn't require
>> all, it only requires enough to tie someone up in court
>> for years at the cost of millions of dollars.
>
>Microsoft claims 250+ patents. OIN doesn't even have that many patents.

So what? Microsoft does *not* claim 250+ patents in
Linux itself. 42 in the kernel. It makes no difference
how many OIN has, if there is even *one* that is
infringed.

>>>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.
>>
>> It would not be limited to copyright any more than would
>> the claims that Microsoft is making.
>
>Huh? The claim was that Microsoft copied code from open source, that's
>copyright.

Huh? If the particular code that is copied happens to
*also* be a patented algorithm, then it would be both a
copyright violation *and* a patent infringement to use
it.

Now, if you can't come up with a more honest response
than that one, I will not continue this type of
discussion. I don't mind teaching you, but I do mind
correcting obviously dishonest statements. If you
didn't know, that would be different, but you continue
to say things that you *clearly* know are false.

--
Floyd L. Davidson
Ukpeagvik (Barrow, Alaska) floyd-at-apaflo.com

Erik Funkenbusch wrote:

>Guy Macon wrote:

>You seem to have a strange outlook on patent law, one that
>isn't supported by case law.

At least people can go to my website and see exactly what my
qualifications are and exactly who I work for... So. are you
ready to stop exchanging ad hominem attacks and start discussing
the merits of my argument? (You do *not* want to ave a flame
war with the editor of the _flame to end all flames_ file...

>Prior art is not really a defense.

And you claim *I* have a strange outlook on patent law?

Here it is from the horse's mouth:

"The basic purpose for citing prior art in patent files is to
inform the patent owner and the public in general that such
patents or printed publications are in existence and should
be considered when evaluating the validity of the patent claims."
Source: http://www.uspto.gov/web/offices/pac...2.htm#sect2202

Also, Title 35 of the United States Code (Section 102) clearly
states that "A person shall be entitled to a patent *unless*"
[the invention was] "known or used by others in this country,
or was patented or described in a printed publication in this
or a foreign country [...] prior to the date of the application
for patent in the United States."

In other words, prior art invalidates a patent.

>>A basic principle of patent law is that infringer must be
>>given a chance to stop infringing. If the patent holder
>>doesn't give them this chance, the damages the patent
>>holder can claim are severely limited.
>
>That's simply not true. There are all kinds of cases where
>submarine patents have been upheld.

Please address what I actually write, not a straw man.

I wrote about damages being limited, not patents being upheld.
And damages *are* severely limited if the patent holder doesn't
give the alleged infringer a chance to stop infringing. That's
not only the law, but a rule of basic fairness.

>> Also, if Microsoft actually sues instead of just blustering,
>> they risk the case going all the way to the supreme court for
>> a final decision as to whether algorithms can be patented.
>> This is a huge risk for Microsoft; if they lose that one they
>> won't have any valid patents left at all.
>
>It's unlikely the supremes would hear such a case.
>It's civil law, not criminal.

Again we see that it is you who has a strange outlook on patent law.

Not only does the supreme court hear civil cases, patents are in the
United States Constitution, Article I, Section 8, Clause 8:

"The Congress shall have Power [...] To promote the Progress of Science
and useful Arts, by securing for limited Times to Authors and Inventors
the exclusive Right to their respective Writings and Discoveries"
(Also see the Statute of Monopolies of 1624.)

In what way do you figure that the US Supreme Court not rule on
matters that are in the US Constitution? That's their only job.

>> This would open Microsoft to having an unbiased
>> third party go through their source code looking for infringement.
>> What are the odds that some of the thousands of microserfs who
>> wrote that code "borrowed" from the easy-to-get Linux source code?
>
>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.

Please forgive me for being unclear. While such a search might conceivably
find a copyright violation, what I have in mind and expressed poorly was
them finding a patent infringement caused by a microserf stealing a patented
algorithm.

(I don't think an actual copying / copyright violation would be found.
First, an ANSI C routine looking for GCC libraries wouldn't work if cut
and pasted into an OS that is expecting a Visual C++ routine looking for
MFC libraries. Second, no such cut and paste copying was found in the
leaked NT source. Third, MS could esily do an occasional scan for any
such copied code during development and get rid of it - simple text
matching against all known Open Source code would find it.)

>> And if the rumors of Microsoft losing the source code for part of
>> Windows are true, they may be ordered by the court to stop using
>> the object code for those parts of Windows.
>
>That's ridiculous. The only code they claimed was lost was old Windows 95
>code.

Please address what I actually write. The persistent rumors of Microsoft
losing source code have nothing to do with the source code they conveniently
lost when doing so helped them in a lawsuit. The rumors (and they *are*
just rumors -- I have no evidence that they are true -- are that Microsoft
somehow managed to lose the source code for big chunks that are still in XP
and Vista. The rumors are that Microsoft doesn't understand how those chunks
work and is afraid to make any changes that might break something.

Let;s see how you score on my Fudometer:


FUDOMETER Model 31337 Copyright (C) 2000 by Guy Macon
------------------------------------------------------------------------
0 1 2 3 4 5 6 7 8 9 +10dB +20dB
|||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||||||||||||
|||||||||||||

Only a two? Sorry, try a little harder next time. Thanks for playing!


--
Guy Macon