5 ms·

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 year

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.

bsullivan01 13y ago
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
- afsina 13y ago
  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). http://arstechnica.com/tech-policy/2012/02/the-three-patents-microsoft-is-hammering-the-nook-withand-why-they-may-be-invalid/ http://arstechnica.com/tech-policy/2012/02/the-three-patents... http://androidcommunity.com/barnes-noble-reveals-microsofts-android-patents-in-detail-20111114/ http://androidcommunity.com/barnes-noble-reveals-microsofts-...
  - bsullivan01 13y ago
    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. A search for "strength Microsoft patents" yielded this http://www.pcworld.idg.com.au/article/272100/survey_microsoft_has_strongest_patent_portfolio/ http://www.pcworld.idg.com.au/article/272100/survey_microsof... "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." I am going to take their word over yours. Sorry.
- cheald 13y ago
  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.
- cromwellian 13y ago
  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.
  - sbuk 13y ago
    > 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.
    - magicalist 13y ago
      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. If anyone is curious about what happened to change things, it was these guys: http://arstechnica.com/tech-policy/2012/09/how-a-rogue-appeals-court-wrecked-the-patent-system/ http://arstechnica.com/tech-policy/2012/09/how-a-rogue-appea... Great article if you're interested in how we ended up in the patent mess we are in.
alwaysdoit 13y ago
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.
throwawaykf02 13y ago
> Microsoft shaking down Android vendors 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.
- mda 13y ago
  I would love to see that essay of yours. I think this issue is not enough said and he should not stop at all.
  - throwawaykf02 13y ago
    Not an essay, but did post a slightly more expansive comment just upthread :-)
- magicalist 13y ago
  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. [1] http://arstechnica.com/tech-policy/2011/03/long-battle-likely-in-microsofts-newest-patent-infringement-suit/ http://arstechnica.com/tech-policy/2011/03/long-battle-likel... [2] http://arstechnica.com/tech-policy/2011/03/long-battle-likely-in-microsofts-newest-patent-infringement-suit/ http://arstechnica.com/tech-policy/2011/03/long-battle-likel... edit: below, afsina provided an even more detailed look at the three patents that became key to the barnes and noble ITC complaint: http://arstechnica.com/tech-policy/2012/02/the-three-patents-microsoft-is-hammering-the-nook-withand-why-they-may-be-invalid/ http://arstechnica.com/tech-policy/2012/02/the-three-patents...
magicalist 13y ago
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. [1] http://arstechnica.com/tech-policy/2013/08/google-adds-79-patents-to-patent-non-aggression-pact/ http://arstechnica.com/tech-policy/2013/08/google-adds-79-pa... [2] https://news.ycombinator.com/item?id=6539746 https://news.ycombinator.com/item?id=6539746

bsullivan01 13y ago

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

afsina 13y ago
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). http://arstechnica.com/tech-policy/2012/02/the-three-patents-microsoft-is-hammering-the-nook-withand-why-they-may-be-invalid/ http://arstechnica.com/tech-policy/2012/02/the-three-patents... http://androidcommunity.com/barnes-noble-reveals-microsofts-android-patents-in-detail-20111114/ http://androidcommunity.com/barnes-noble-reveals-microsofts-...
- bsullivan01 13y ago
  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. A search for "strength Microsoft patents" yielded this http://www.pcworld.idg.com.au/article/272100/survey_microsoft_has_strongest_patent_portfolio/ http://www.pcworld.idg.com.au/article/272100/survey_microsof... "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." I am going to take their word over yours. Sorry.
cheald 13y ago
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.
cromwellian 13y ago
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.
- sbuk 13y ago
  > 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.
  - magicalist 13y ago
    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. If anyone is curious about what happened to change things, it was these guys: http://arstechnica.com/tech-policy/2012/09/how-a-rogue-appeals-court-wrecked-the-patent-system/ http://arstechnica.com/tech-policy/2012/09/how-a-rogue-appea... Great article if you're interested in how we ended up in the patent mess we are in.

alwaysdoit 13y ago

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.

throwawaykf02 13y ago

> Microsoft shaking down Android vendors 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.

mda 13y ago
I would love to see that essay of yours. I think this issue is not enough said and he should not stop at all.
- throwawaykf02 13y ago
  Not an essay, but did post a slightly more expansive comment just upthread :-)
magicalist 13y ago
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. [1] http://arstechnica.com/tech-policy/2011/03/long-battle-likely-in-microsofts-newest-patent-infringement-suit/ http://arstechnica.com/tech-policy/2011/03/long-battle-likel... [2] http://arstechnica.com/tech-policy/2011/03/long-battle-likely-in-microsofts-newest-patent-infringement-suit/ http://arstechnica.com/tech-policy/2011/03/long-battle-likel... edit: below, afsina provided an even more detailed look at the three patents that became key to the barnes and noble ITC complaint: http://arstechnica.com/tech-policy/2012/02/the-three-patents-microsoft-is-hammering-the-nook-withand-why-they-may-be-invalid/ http://arstechnica.com/tech-policy/2012/02/the-three-patents...

magicalist 13y ago

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. [1] http://arstechnica.com/tech-policy/2013/08/google-adds-79-patents-to-patent-non-aggression-pact/ http://arstechnica.com/tech-policy/2013/08/google-adds-79-pa... [2] https://news.ycombinator.com/item?id=6539746 https://news.ycombinator.com/item?id=6539746