...from: http://arstechnica.com/tech-policy/news/2010/10/strange-bedfellows-eff-apach...
Strange bedfellows: EFF, Apache back Microsoft in patent dispute By Ryan Paul | Last updated a day ago Although building consensus position on patent reform proposals has proved difficult, practically every major stakeholder (except patent attorneys, of course) agrees that the US patent system is broken. As a result, patent problems occasionally generate unexpected alliances between disparate groups at opposite ends of the ideological spectrum. In the latest example, a number of organizations, including the Electronic Frontier Foundation and the Apache Software Foundation, have filed an amicus brief that expresses support for Microsoft's pursuit of revised patent rules. Microsoft is currently mired in a high-profile patent dispute with i4i, a company that develops collaborative document editing software. The XML editing capabilities in Microsoft's popular office suite are said to infringe related patents that are held by i4i. The courts have consistently sided with i4i, awarding the company $290 million in damages and threatening Microsoft with an injunction. An appeals court upheld the judgement and the US Patent Office (USPTO) has declined to invalidate the patent.
Microsoft is attempting to take the matter to the Supreme Court with the aim of arguing for a change in the rules that govern the process of invalidating patents. Present case law sets a high standard for parties that seek to get a patent thrown out, requiring them to provide "clear and convincing" evidence that the patent is invalid. Microsoft wants the Supreme Court to lower the standard so that only a "preponderance" of evidence is necessary. Such a change would make it easier to invalidate patents on the basis of prior art and other factors.
The EFF and the Apache Software Foundation support Microsoft's argument in favor of lowering the standard because they believe that the current standard is excessive and unfairly disadvantages open source software projects that don't have the resources to fight back against costly patent litigation. Adopting the "preponderance" standard would make patent invalidation consistent with other similar facets of civil law.
"FOSS projects often depend on the collective knowledge of their members and the documentation of the projects as prior art, to the extent that such documents exist," the brief says. "Much of this collective knowledge, however, arguably could not be considered as evidence under the Federal Circuit's current standard requiring alleged infringers to provide invalidity by 'clear and convincing' evidence... Thus, holders of patents that are unnecessarily virtually indestructible because of the inflated standard for proving invalidity pose a particular threat to FOSS."
In addition to discussing this specific issue and its implications, the brief attempts to show how a pattern of poor Federal Circuit rulings have distorted the patent system, including one instance where the Federal Circuit was later rebuked by the Supreme Court for "fundamental misunderstandings" of patent law when a long-standing precedent related to the obviousness standard was thrown out.
The brief contends that the standard set by the Federal Circuit for invalidating patents is similarly flawed and must be corrected. They believe that the Supreme Court should agree to hear Microsoft's case so that they can address the problem.
"In this case, the Federal Circuit has incorrectly interpreted a clear statute. This Court should grant certiorari to correct the Federal Circuit's misreading of [section 282 of the Patent Act]," the brief concludes.
Due to Microsoft's history of making threatening patent statements towards the Linux platform, there are likely some people in the open source software community who would like to see Microsoft get a black eye from i4i. Despite the past friction, the specific patent issue raised by i4i's lawsuit against Microsoft transcends that kind of partisanship and demands unified support. If the Supreme Court agrees to hear Microsoft's case and sides with the software giant, it would be benefit the entire open source software community.
...and yet, in the same moment.....
...from: http://arstechnica.com/microsoft/news/2010/10/microsoft-sues-motorola-citing...
Microsoft sues Motorola, citing Android patent infringement By Emil Protalinski | Last updated a day ago
Microsoft has announced a lawsuit against Motorola, alleging that several of the mobile company's Android devices infringe on nine of its patents. The software giant is suing in US District Court in Washington, and is also bringing a complaint before the International Trade Commission (ITC). The patents are all related to key smartphone experiences that include syncing e-mails, calendars, and contacts, scheduling meetings, and notifying applications about changes in signal strength and battery power. Microsoft specifically names two Motorola devices, the Droid 2 and the Charm, but says these are just examples and not a comprehensive list.
The suit comes just as Microsoft readies the release of its Windows Phone 7 mobile operating system, the successor to Windows Mobile. Motorola was once a big backer of Windows Mobile, but in recent years it hasshifted to Google's Android. Although manufacturers can use Android for free, Microsoft argues that phone makers should consider the potential patent infringement issues and the related costs of the mobile OS.
The nine patents in question in the ITC complaint include:
5,579,517: Common name space for long and short filenames 5,758,352: Common name space for long and short filenames 6,621,746: Monitoring entropic conditions of a flash memory device as an indicator for invoking erasure operations 6,826,762: Radio interface layer in a cell phone with a set of APIs having a hardware-independent proxy layer and a hardware-specific driver layer 6,909,910: Method and system for managing changes to a contact database 7,644,376: Flexible architecture for notifying applications of state changes 5,664,133: Context sensitive menu system/menu behavior 6,578,054: Method and system for supporting off-line mode of operation and synchronization using resource state information 6,370,566: Generating meeting requests and group scheduling from a mobile device "We have a responsibility to our customers, partners, and shareholders to safeguard the billions of dollars we invest each year in bringing innovative software products and services to market," Horacio Gutierrez, Microsoft's corporate vice president and deputy general counsel of Intellectual Property and Licensing, said in a statement. "Our action today merely seeks to ensure respect for our intellectual property rights infringed by Android devices; and judging by the recent actions by Apple and Oracle, we are not alone in this respect," he added in a Microsoft on the Issues blog post.
Apple earlier this year claimed that HTC's Android (and Windows Mobile) handsets violate a number of its patents. To avoid a similar fight with Redmond, HTC paid Microsoft for patent licenses. Regardless of the outcome of the HTC vs. Apple battle-turned-war, Android incurred costs for HTC, in spite of its free licensing.
It's next to impossible to build a mobile device nowadays without extensive licensing agreements. Microsoft provides companies using Windows Mobile and Windows Phone operating systems with patent protections, while Google simply provides moral support. When Microsoft made the "Android isn't free" allegations, it was widely assumed that the software giant was referring to HTC's legal problems. With today's attack on Motorola, it's clear that Microsoft had more than just HTC on its mind.
