Skip to comments.Microsoft loses Supreme Court case on Canadian patent ($290M)
Posted on 06/09/2011 12:42:12 PM PDT by markomalley
Microsoft Corp suffered a defeat on Thursday when the Supreme Court upheld a record $290 million jury verdict against the software giant for infringing a small Canadian company's patent.
The justices unanimously agreed with a U.S. appeals court ruling that went against the world's largest software company in its legal battle with Toronto-based i4i.
The high court refused to adopt Microsoft's lower standard to replace the long-standing requirement that a defendant in a patent infringement case prove by clear and convincing evidence that a plaintiff's patent is invalid.
Redmond, Washington-based Microsoft had argued that a lower standard of proof involving a "preponderance of the evidence" would make some "bad" patents easier to invalidate while promoting innovation and competition.
(Excerpt) Read more at reuters.com ...
So sorry Bill, Canadian courts interpret our laws according to Canadian law, not US law. Bummer, eh?
IIRC, it was that founder of MS who once remarked:
“Good ideas are meant to be borrowed. Great ideas are meant to be stolen.”
Thanks for the ping, Squawk 8888
This was a U.S. court decision, interpreting the U.S. patent laws, involving a U.S. patent (albeit held by a Canadian company).
Software patents... Absolute rubbish. Patents were always intended for protection of physical creations or the arts. I wonder how much of the economy is drained each year continuing this horrible system that stifles innovation and creation. I’d guess at least tens of billions, if not a lot more.
“Redmond, Washington-based Microsoft had argued that a lower standard of proof involving a “preponderance of the evidence” would make some “bad” patents easier to invalidate while promoting innovation and competition.”
Hmmm? Patents stifle innovation?
I agree, but at this point it is something that will take courageous lawmakers to change. Know any courageous lawmakers?
Method and system patents stifle innovation. When you can make up an idea, not apply it to any actual system, and get a patent for it, even after it’s already out there, the system is broken.
Further, I take great issue with the idea that ‘a limited time’ is virtually for all intents and purposes reinterpreted to mean forever. There is an exchange - in exchange for you getting exclusive government protected use of your creation, you give up rights to that creation after a certain number of years. The trade has been broken through poor congressional action and courts that won’t outright declare the laws unconstitutional for breaking the provisions of limited time.
Sorry, my bad- I didn’t realize that it was a US source, so I assumed that it was referring to the Supreme Court of Canada.
I know of none who'd risk the ire of the RIAA or Hollywood to fix a broken system.
Fortunately, $290M is less than Microsoft spends on coffee filters each week.
Yes, most patents are requested in order to keep someone else’s innovation off the market.
A patent can encourage innovation, and it can discourage it too. You are aware of the one thing—that the protection of one’s creative invention allows one to market it, as marketing it generally makes it’s secrets public.
On the other hand, a patent more often is used to quash similar inventions. Often when an invention is made, it is that the time is ripe for it—general social innovation or other discoveries make something obvious or needed in ways that did not previously exits. Many people discover the same innovation, all independently. That is, let me be very clear here, MANY people working in the same field would naturally be expected to come up with the same or similar innovations on their own.
Microsoft: the law firm that thinks it’s a software company.
First case fails the requirement of novelty. A just court would rule that a patent that fails any one of the tests: novel, inobvious, and useful is null and void.
The problem is not with the patent, but with the court.
Second case, currently patents last 20 from date of filing. Period. There are no extensions. A company or inventor can continue to file patents on any improvements or derivative works/technologies, but the underlying technology becomes public domain after the initial creator has his first bite at the apple.
Without the protection of patents an individual would have absolutely no hope of deriving any benefit from his own efforts. Lack of such protection absolutely stifles any creative effort.
Compare the net creativity of all civilizations before Franklin proposed patents, to after it became possible to “own”, no matter how temporarily, an idea.
In an era where patents are used as rent entitlements, like the huge estates granted the grandees of England, for a class of people whose only innovation and expertise is in litigation and lobbying; then yes, a the only way company can become huge is to become a law firm.
Yup. Lots of paperwork with lots of lawyering and lots of fees makes lots of innovators say "the Hell with it!"
Especially when they consider that the only thing a patent will really do is license them to try to outspend 'Microsoft' on lawyers.
Always seemed to me that for software, a copyright would be the preferred tool, but this is an area I don’t know much about.
Um, no. It is to keep someone from hijacking your innovation as part of their product.
You are aware of the one thingthat the protection of ones creative invention allows one to market it, as marketing it generally makes its secrets public.
A patent requires the disclosure of the secrets, a patent can be voided if key details are withheld. This disclosure preceded the introduction of a product (Indeed the inventor loses the right to patent any idea publicly offered for sale before the filing!)
Some things it makes sense to patent, some things don't. Where would Coca-Cola be today if they had patented their recipe?
On the other hand, a patent more often is used to quash similar inventions.
Often it is. This requires competitors to patent their own technology and cross license when and where they can.
Often when an invention is made, it is that the time is ripe for itgeneral social innovation or other discoveries make something obvious or needed in ways that did not previously exits. Many people discover the same innovation, all independently. That is, let me be very clear here, MANY people working in the same field would naturally be expected to come up with the same or similar innovations on their own.
Yep. Been there, done that. Got the patent.
Absolutely agree. Even though this affects microsoft, I’m again’ the ruling. Software patents are garbage that is severely adversely affecting the software industry. This is one of the few industries America still dominates. No wonder the government wants to destroy it.
Especially when they consider that the only thing a patent will really do is license them to try to outspend 'Microsoft' on lawyers.
And no lawyer would ever take a case against MicroSquish based on a portion of the potential settlement...
Me neither, but it does seem more like a copyright issue.
OTOH a patent drops dead after 20 years and a copyright is for 50 years AND IS RENEWABLE...
“It’s only about $5,000 for an individual to get a patent, about $10,000 for a corporation. “
Without the money to defend the patent in court its not worth the paper its written on. Likewise some company can use the courts to whack startups who don’t have the money to defend their product from bogus patent infringement lawsuits.
Chris Dixon, an investor and a long-term entrepreneur: "a key part of the problem is that so many patents are clearly obvious to anyone skilled in the art." ... any competent engineer could create what's found in the vast majority of software patents ... the examiners simply aren't competent enough to recognize what's obvious.
Mike Masnick, founder and CEO of Floor64 and editor of the Techdirt blog: "few people in Silicon Valley actually think patents are a good idea any more. The system has become so distorted that most of the people they're supposed to benefit the most don't want them, but feel compelled to get them due to the system. What a massive amount of waste, leading to a mess that holds back innovation."
Fred Wilson, "The basic problem with patents is that you're trying to assign property rights to something that doesn't deserve property rights. The fact that these property rights end up in the hands of financial owners as opposed to the original inventors just exacerbates the problem. The basic problem is that [a] bunch of engineers can be sitting at [lunch] designing some amazing new feature and somebody unbeknownst to them has a patent on this feature and never actually implemented it and can now screw them over
Its just not right, it shouldnt exist." ... compares patenting software to patenting music, noting that neither makes sense.
Yes. That is an abuse of the system. I used to work in the same building as the “King of the Submarine Patents”.
What a character! He came in as a consultant, developed a process under contract with us, using our materials and facilities, then patented the technique and tried to sue us for violating “his” patent!
Barry’s main source of income was a number of patent applications he had pending but on hold. As soon as anyone would commercialize an idea, his application would go off hold and he’d get the patent and settle out of court for some fee and royalties.
The USPTO ultimately ended up changing their rules because of him...
An investor’s entire goal in life is separating an invention from the inventor and using that invention to separate customers from their money.
A patent gets in their way.
The company I went to work for after that one got one of the first "algorithm" patents. I left it, and felt a fool for having joined it. What a regressive company! The want to rest on their prior inventions and market position, like milking cows. That's not innovative. I am intensely innovative in whatever I do. I did not fit in well there.
I've seen both software and hardware patents repress innovation. With the hardware patents generally one can invent a modified product that does a similar function. That's not so easy with many software patents because they are so loosey-goosey. So software patents are more effective as tools of legal extortion.
That’s more acerbic than true. But it is truer given a patent system that allowed the “King of what-the-whatsie” to hassle you and others with dimwitted patent grants.
Mostly any employer owns any idea you have while an employee anyway.
Nothing wrong with getting residual payments on a good idea, it’s like receiving deferred pay. Depending on it, not so much.
Agreed on your take on software patents. A utility patent is typically on a method of achieving a given goal, and practically begs other clever souls to find other methods.
A software patent (as far as I can tell, and I’m certainly no expert here!) covers the goal itself.
Yes, that sounds like a good deep intuition of a statement. The method is the goal, the medium is the message. Like a any graphic cursor that uses an inverted field is a XOR cursor.
Ever since Autodesk had to pay $25,000 to "license" a patent which claimed the invention of XOR-draw for screen cursors (the patent was filed years after everybody in computer graphics was already using that trick), at the risk of delaying or cancelling our Initial Public Offering in 1985, I've been convinced that software patents are not only a terrible idea, but one of the principal threats to the software industry. As I write this introduction in 1993, the multimedia industry is shuddering at the prospect of paying royalties on every product they make, because a small company in California has obtained an absurdly broad patent on concepts that were widely discussed and implemented experimentally more than 20 years earlier.Such patents are inherently Marxist, by that I mean using imaginary property in way that is incredibly destructive to real private property, and doing so despotically. The most vicious and unprincipled wins.
Patent Nonsense, John Walker, May 10th, 1993
The big eat the small, and the small have no protection.
A patent must be novel, inobvious and useful.
This clearly failed two of the three...
“Patents were always intended for protection of physical creations or the arts”
Firstly, artworks are copyrighted (or trademarked, if you consider advertising art [and you shouldn’t]), not patented.
More importantly, software is a physical creation, you dope. Or the plans for one, anyway. What, do you think only specific finished whirlygigs are patented? Like the government squirrels away shelves upon shelves of devices in their Raiders of the Lost Ark-esque hidey hole? Please. They patent plans, and software design consist of plans.
“I wonder how much of the economy is drained each year continuing this horrible system that stifles innovation and creation. Id guess at least tens of billions, if not a lot more.”
Oh yeah, we’re really stuck in an electronics/computer rut. When was the last innovation? like six seconds ago? We should by all rights be down to 3 seconds, damnit! What is this, the Stone Age?!?
But it wasn’t. Besides those limitations on patent are legislative, aren’t they? The Constitution is quite terse.
“Method and system patents stifle innovation. When you can make up an idea, not apply it to any actual system, and get a patent for it, even after its already out there, the system is broken.”
So glad to hear you are wise enough to know the difference. How easy it would be to give out protection only for real, physical, or whatever stuff instead of abstract “method and system” plans, and also what’s not already out there and what’s going to be immediately used. The world will never run out of genuises like you to distinguish between honest innovation of hardworking Americans and greedy fat cats.
On second thought, it doesn’t take a genius. It’s obvious that “the system” is broken, so who needs a system? Junk it all and see how much more “creative” we all become (sha-la-la-la).
“AND IS RENEWABLE”
Why they caps, praytell?
“Yes, that sounds like a good deep intuition of a statement. The method is the goal, the medium is the message.”
Too bad they can’t be as oh so clever as you: “Such patents are inherently Marxist, by that I mean using imaginary property in way that is incredibly destructive to real private property.” Talk about psuedo-intellectual gobbledygook (and gratuitous name-dropping, to boot).
This is something that sticks in my craw, so I’ll zero in on it. What property isn’t “imaginary”? Real, material, physical, tactile stuff, I’d guess you say. Well, leaving aside for the moment all the immaterial things you can own without which there’d be no civilization, let’s take it as given that you can only own physical things. Does that somehow make property less imaginary? Hell no.
Property is about the relationship between you and your things. Not the physical relationship, either. If it were, we wouldn’t need the law, as Might would determine ownership. Your car, your land, your whatever would cease to be yours once you weren’t touching it. But that’s not the case. Property exists because we imagine it to be yours even when you’re not in possession of it.
In summation, all property is imaginary.
Patents are an imaginary form of property. Imagination is fine, but as a form of transferable property, it has no real markers of property lines. It tends to become wild quickly when indulged, and when policy and contract depend ONLY upon imaginary boundaries, contracts and policy become tyrannical.
Real property obeys the Pauli exclusion principle. Once a real thing exists in this instance of a universe, when held 100% by one it is not held by another.
And btw, your post is an exemplary mini-essay. Very Marxist!
Ignore the things, recast property as relationship. The old “make absolute things relative” transform.
But this world ain’t Marxist. It’s real.
I was so intrigued by what he was producing, so I got him to talk with me about it. He said he and his wife had, working together, spent ten years of research, experimentation and invention, not only figuring out how to do it but creating the equipment to do it and do it well.
I asked how much time and expense they put into getting the process or equipment patented. He floored me when he said they had gotten NO patents for any of it. I was amazed and opined that that seemed wild to me as I had never seen anything like it and surely they wanted to protect what they had.
He told me that they had looked into getting key parts of the process and key equipment patented, and, in the end decided against it. They thought the expense was too much, the time involved too long and possibly litigious, and to get the patents they had to actually make a public record of the "how to" of what they had.
He said that his wife and him finally decided: "If someone else can figure this out on their own, so be it."
I am not fully in agreement with their choice, but I have such respect for them that when I discuss this issue I try not to say directly what it is they did.
It's been twelve years. They still have their same small location and do their business out of a small semi-rural studio. I have not yet seen anyone else repeat their work. They are not trying to spread what they know to the world, but they are not stopping anyone from doing what they do. They actually do not want to be business giants and very well known. They like their lifestyle just as it is.
While I can see the "rightness" of patents, I can also see that it is a process - getting patents - that itself (the process) REQUIRES you to protect, or you might as well not start down that road in the first place. It depends on the business model that satisfies what it is you want to do.
“Patents were always intended for protection of physical creations or the arts.”
Wrong. Patents were to protect ideas. Software is an idea.
No, “idea” is way too broad. Patents were to protect any useful art, manufacture, engine, machine, or device, or any improvement thereon not before known or used.
That’s the wording used in the Patent Act of 1790. A useful art means what we today call technology. It did not mean “art” as the term is commonly used today to describe things like “Piss Christ”, and performance art, like 1911’s jeune fille Adorée Villany’s did. Nor did it include Micheal Jackson in either his Jackson 5 or his Thriller persona.
More power to ‘em.
(Now I’m dying to know what and how)...
Sorry. I know I am following my own strong feelings of respect about their efforts and not anything they demanded from me - because in all we discussed they revealed nothing about how they do it.
I will only say that if you are ever visiting the shops and galleries in New Hope, Pennsylvania, you might run across their studio-shop.
If you do, run across their place that is, I am sure you will recognize the unique process and you’ll tell me then that you found it.
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