One of the issues is how you define "defensive" purposes. If you are locked in an ecosystem battle with opponents who are fighting on multiple fronts over years (Microsoft shaking down Android vendors, Apple suing to ban and restrict competition), then you yourself may never be sued directly, but your interests are nevertheless, still being attacked indirectly. It's like a Cold War where your client states are fighting it out against other superpowers.
Thus, is it "offensive" if Apple sues one of your customers over a stupid patent on phone number extraction via regular expressions, or Microsoft sues over FAT32, and you retaliate by suing them because they built a bill-splitting app into their product? Or must they launch a nuclear missile directly at your capital before you're considered justified in a counter-offensive?
The hope I think of asserting these kinds of patents is that mutually assured destruction results in detente. You build up a nuclear arsenal so that it becomes unthinkable by your opponent to attack, and this is undermined if you hold yourself to some kind of pledge never to use them, or never to use them unless your capital is bombed directly.
What the EFF is asking for is a nuclear non-proliferation treaty and test ban, but they are asking the weaker player (who has fewer weapons) to give up their weapons and give up making, and not the superpowers.
I agree with you -- one man's "defensive" lawsuit is another's overbroad patent trolling -- but I agree more with the EFF. If Google is going to go for this kind of patent, then it would be good to see a firmer (and much larger) commitment to something like their "Open Patent Non-Assertion Pledge"[1].
I'd breathe easier about these crap patents if I knew they were functioning only as land mines for bad parties out there. Of course, they shouldn't exist in the first place and real patent trolls have nothing to worry about, since they produce nothing that you can countersue over in the first place...but the EFF is right that this is the right thing to do in this case. skore brings up a good point below[2] that it's not really about fairness. Google is a company that prides itself on being better than using "vague, overbroad" patents, so best to use that as leverage to make sure a big presence in the industry continues as a good(ish) actor and use that as a fixed point for continued change.
Detente is still chilling to the rest of the industry. It raises the barrier to entry for anyone who would potentially wish to compete. I think it would be better to fight it out and prove just how broken the system really is.
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.
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.
>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!
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
> 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,...
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?
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.
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."
Let's cut the crap and get to the point: are you saying that the Patent Office should grant a patent for tip splitting to Google? Yes or no?
It's sad and hilarious at the same time to see Googlers defend these ridiculous positions as their company shifts strategy every week chasing an extra dollar. Who knows what you'll defend next week.
You build up a nuclear arsenal so that it becomes unthinkable by your opponent to attack
Redmond and Palo Alto are shaking in their boots, this tab splitting innovation from the smartest people on earth really tipped the balance :-). Apple and Microsoft have been building operating systems and patenting each step of it for 30-40 years. That's why every Android manufacturer bowed to Microsoft
Let's get this straight, I agree wholeheartedly with Oracle (prior to their buying Sun), I don't believe in software patents period. But I also don't believe that people should have nuclear weapons. That doesn't mean I think the US should unilaterally disarm.
Apple and Microsoft built their operating systems during a period when many people thought you shouldn't patent software, indeed, when Bill Gates wrote Microsoft Basic, thee wasn't even widespread agreement on software copyright. They were able to appropriate what came before them mostly for free, and operate in an environment of relative legal calm. And now they've benefited from the privilege of that, they want to turn around and maintain their empires by punishing up and coming enterprises who threaten to disrupt them by poisoning the atmosphere.
Where would Apple be if Xerox had behaved like Apple and MSFT with respect to litigiousness? Where would the PC revolution have gone if IBM had won against the clone makers and maintained a monopoly over the PC? Apple is trying to "own" the smartphone like IBM tried to own the PC, not content with $150 billion in cash and 50% of the US market, they want to use the courts to prevent competition.
Until the US Patent Office/Courts stops granting bogus patents period, and nullifies the power of the existing software patents, the only way to fight the system is to use it.
> Where would Apple be if Xerox had behaved like Apple and MSFT with respect to litigiousness?
They tried and failed for a number of legal reasons, the fact that they had been paid for the access Apple was given amongst them. I'd also ask where would Xerox have been had Doug Engelbart, SRI or Donald Sutherland had been litigious; all had a case against Xerox.
Notably, Apple also tried and failed to sue Microsoft over the "desktop metaphor" in the 90s, which is also just as well. Things were quite different back then, to all of our benefit. No one had to pay 25 cents per copy to include scrollbars in their application, or 50 cents to include a dialog box.
Yes, but the article (and the "sponsored comment" at the end) also say that before the CAFC happened, it was a different, though equally painful, patent mess.
I don't think the patent should be granted. I also think software patents are unequivocally bullshit.
All that said, Google's playing the game here. You file for whatever you can, because the cost of filing is minimal. You take whatever sticks. You then use your collection as a latent threat to deter other more sue-happy players from challenging you on some bullshit claim because of some bullshit software patent they hold, because the greater the chance that they're infringing on some bullshit claim on some bullshit patent you hold, the more bargaining power you have to force a beneficial a cross-licensing agreement rather than an expensive legal judgment.
The problem is that software patents exist and that the USPTO grants them and that the courts enforce them and that companies like Microsoft and Apple assert them as tools to stifle competitors (as opposed to protecting actual innovation). Refusing to play the game just leaves Google in a weak position.
You would cry if you see those "patents" MS is using for extortion. Most have nothing to do with OS. If any is related, MS is too scared to disclose it because it would be against Linux or Unix (which is around for 40-50 years).
Am i supposed to believe your word over the reality, given that all (other than Motorola) have licensed patents from Microsoft?
>> Most have nothing to do with OS. If any is related, MS is too scared to disclose it because it would be against Linux or Unix (which is around for 40-50 years).
40-50 years patents are non-existent, at least in the USA. And "Most have nothing to do with OS" is irrelevant, Microsoft has tens of thousands of patents, all they need a few dozen key OS patents to work with.
"The Institute of Electrical and Electronics Engineers’ (IEEE) annual Patent Scorecard, released in December 2008, gave Microsoft the top score among all categories. This is the second consecutive year Microsoft has topped the list.
IEEE’s Patent “Pipeline Power” ranking takes a number of factors into account, including the number of patents held, year-over-year portfolio growth, the variety of technologies influenced and the number of times a company’s patents are cited in the patent applications of other inventors."
Thus, is it "offensive" if Apple sues one of your customers over a stupid patent on phone number extraction via regular expressions, or Microsoft sues over FAT32, and you retaliate by suing them because they built a bill-splitting app into their product? Or must they launch a nuclear missile directly at your capital before you're considered justified in a counter-offensive?
The hope I think of asserting these kinds of patents is that mutually assured destruction results in detente. You build up a nuclear arsenal so that it becomes unthinkable by your opponent to attack, and this is undermined if you hold yourself to some kind of pledge never to use them, or never to use them unless your capital is bombed directly.
What the EFF is asking for is a nuclear non-proliferation treaty and test ban, but they are asking the weaker player (who has fewer weapons) to give up their weapons and give up making, and not the superpowers.