Barnes & Noble Exposes Microsoft's Trivial Patents and Strategy Against Android
groklaw.net
groklaw.net
I have no words for Microsoft, they're simply despicable and I don't know how anyone could support such a company that has proven time and time again they will adopt such tactics to destroy their competition. They've probably done a lot of this behind the scenes with Linux and other browsers before. We just didn't find out about most of it. And we almost didn't find out about this, either, if it wasn't for B&N.
But what I don't understand how could HTC, Samsung and all the others agree to this so easily? HTC has grown 3x every year for the past 2 years because of Android, and Samsung has become the largest smartphone manufacturer surpassing both Nokia and Apple thanks to Android, and they say nothing against Microsoft or try to protect the ecosystem that's been feeding them?
Shame on them for not standing up to Microsoft, and kudos to B&N, which wasn't even a manufacturer not too long ago, for having the guts to stand up Microsoft and protect the Android ecosystem.
On some level this is good. Once software development becomes dominated my lawyers the markets will find ways to shift away from the US market. So this problem will eventually solve itself: Either the patent system is fixed, or innovation is going to happen somewhere else soon.
Reminds me of the argument that Apple's winning because they derive the most profit out of the phone business inspite of Android's marketshare, but Apache's winning in the web server business inspite of Microsoft making the most money out of it.
Microsoft, on the other hand, is going above and beyond just exercising patent rights that shouldn't exist. Asking someone to sign an NDA before you will tell them which of your patents they're infringing is so despicable that this should be an automatic win for B&N due to the doctrine of unclean hands.
But I currently hate both companies for the bullshit they are pulling. What happened to building better stuff and winning? Seems Microsoft gave up on that a long long time ago (did they ever make the best of something? all I can think of is the first couple Word and Excel releases)
Microsoft is utilizing ridiculously old, unrelated patents to force Android manufacturers to pay up.
Apple is using designed in house, relevant and modern patents against what it feels is intellectual property theft.
What's the difference?
Apple is suing companies for what it feels is unfair use of the technology that Apple feels it made.
Microsoft is simply forcing companies to pay huge fees for using software that Microsoft never made and has no claim to.
You must be kidding, right?
To add to that: I do feel Apple's lawsuits are a problem. But if we're going to make any meaningful progress, we must start with software patents.
Microsoft's dealings with Android manufacturers offer a golden opportunity to set the precedent that could invalidate software patents in general.
That's too big an opportunity to miss.
Apple's patent suits are (unfortunately?) relevant and modern patents... it's harder to get a foothold against what Apple is doing. Or, in other words, since my viewpoint is not the only viewpoint, I don't see as clear a case that we should invalidate Apple's suits. They have some merit.
That patent is being used against Samsung, doesn't seem really modern since it is from 1997
>Apple is suing companies for what it feels is unfair use of the technology that Apple feels it made.
>Microsoft is simply forcing companies to pay huge fees for using software that Microsoft never made and has no claim to.
Lets interchange those.
Microsoft is suing companies for what it feels is unfair use of the technology that Microsoft feels it made.
Apple is simply forcing companies to pay huge fees for using software that Apple never made and has no claim to.
Still feels right, doesn't it?
Google could probably sue Microsoft for slander, but again, Microsoft hasn't been going around telling the world that Android is infringing on it's patents. They, Microsoft, just go to the manufacturing companies, and even then they are making sure that manufacturing companies sign NDAs to keep the information from going out into the public.
And Google can't sue them to say, 'Tell me what you got.' Because that is fishing, and a form of intimidation, I think. I don't know the right legal term for it, but I do know you can't do it. So Google's hands seem to have been tied up until this point. Now that there are some information in the public, maybe they'll do something now.
Plus they did just give some patents to HTC.
Samsung, HTC e.a. how about writing a Windows driver & Front-end app (e.g. similar to the Nokia or Blackberry desktop apps) that can read a non MS patented file system from your devices – would that not be much cheaper or is their more to this story?
The argument that Microsoft's patents should be voided due to prior art does not make their assertion of those patents illegitimate (illegitimacy of the entire patent process is also irrelevant). The voiding of patents due to prior art or obviousness is a central purpose of the patent courts, and Barnes and Nobel's claims are no less plausible on cursory examination than Microsoft's.
</IANAL>
HTC and Samsung settled with Microsoft because they are financially sound enough to pick their battles and are focused on selling phones rather than ideological battles regarding the merits of Android and Google's approach versus that of Microsoft. I strongly suspect that manufacturers value Android to the degree it contributes to their bottom line and that partnering with Microsoft to license patents is seen as the most beneficial strategy...for both parties.
It's just busines - HTC and Samsung cannot "get Android on the phone" while Microsoft has operators standing by.
The difference, IMHO, is that B&N has very little history as a consumer electronics company (and therefore has no defensive patents to bring to the table), but sees cheap ebook readers as its only hope to be a viable company in the long run (and therefore does not want MS license fees to be a perpetual drag on their profits).
If B&N became a wholly owned subsidiary of Sony or Dell, they would settle this lawsuit in a week.
I agree that B&N is struggling for its existence and I believe that their actions are more consistent with desperation than with an intelligible long term strategy for growth in a changing market.
The drag on profits argument is pretty weak in my opinion since the real money from Nook sales should come from ongoing content sales rather than the sale of the initial hardware, i.e. profits are more dependent on the viability of the Nook ecosystem than on the cost of manufacturing the device.
It might be argued that essentially, B&N is choosing to litigate Google's approach to IP while Google clearly has attempted to disassociate itself from the IP issues which surround Android. And furthermore, that B&N is choosing to enter a litigation arena, patents, in which it has very little institutional expertise.
Right here is where Occam's Razor makes short work of B&N's claims that all MS has is junk patents.
Samsung is going to write MS a $100 million dollar check next year for these patents. Samsung signed the NDA and saw all those patents and has a huge legal department and still decided to pay up.
I buy their products and enjoy their technology even while i abhor some of their business practices. I'm sure plenty of people hate Apple's and Google's business practices too, but still use their stuff.
What can you do? All of this is nothing compared to the actions of the corporation known as the US Government who whores out her super powers for evil the world over. Yet, I still pay my taxes and live here because I'm being practical.
At some point you realize that the whole corporatocracy is against you having any kind of freedom and there's quite literally nothing you can do about it. So, you might as well enjoy your life. Maybe that's the wrong conclusion but at the least I know that Microsoft is just playing in a game and that they didn't invent the game.
Personally, I avoid Microsoft products whenever I can simply before I don't need to use them anymore. There's plenty of great alternatives that are better in many respects.
If I am going to change my life that much, I would rather change careers and become a travelling monk, a yoga instructor, a physical therapist or a vegan food truck vendor. Actually, my plan would be to finish a yoga instructor's course while going to school for a physical therapy license and mastering my cooking at home. THEN, I would roam the country cooking for and healing people. I'm still thinking about it though.
IN HTC and Samsung cases I think MS device business is somewhat 15th of their total business??
Other browsers? Like what? Opera? Doubt we wouldn't hear of it.
> HTC has grown 3x every year for the past 2 years because of Android,
Sure... but just remember that HTC came out from being an ODM for HP and Dell to make Windows Mobile devices and then made a lot of Windows Mobile devices for a long time, which gave them a ton of valuable knowledge about how to make smartphones.
Google is the one that needs to indemnify their OS and make companies like Apple and Microsoft think twice about trying to charge patent license fees.
Remember that Microsoft isn't too happy with the current state of patents and tried a lot (see the Bilski case) to to reduce the burden of proof placed on the alleged violators. If they had succeeded, they would've weakened their own patent suits substantially but they seem to be okay with that.
Making a Windows Mobile phone only teaches you how not to make a smartphone. Not to say it's not valuable knowledge.
> Microsoft isn't too happy with the current state of patents
Something that, oddly, doesn't prevent them from using ridiculous patents exactly the way they don't want patents used against them. Their own conduct invalidates their previous position as they seem more than happy to milk every Android licensee until they bleed.
I don't follow. Could you elaborate for me?
From 2002 to 2007, the only smartphones in the game were Blackberry and Windows Mobile(and Palm?). The hardware was slow and not mature and the software was slow, clunky and needed a stylus. Battery life was pretty bad, and task management sucked and ate up the battery in no time. Microsoft didn't seem to care too much about Windows Mobile and reportedly just had 5 or so people on the SDK team.
The phones like the iPaq, Axim and many HTC devices saw decent success in the marketplace. The iPhone came and changed the game by leveraging advances in hardware with very good software.
Thus the sneering and snark at a Windows Mobile phone in the GP post. Windows Phone is a completely different beast and seems to have learned from WM though.
BTW, ever wonder why Apple doesn't ship LTE iPhone? The hardware quality is not there yet and LTE firmwares are still work in progress.
You seem to have no idea how hard it is to make mobile hardware. There's a ton of work involved including having to make arrangements with the suppliers, sourcing components,etc. Being a profitable incumbent is a huge advantage compared to a newcomer.
I do, trust me. That's why I value highly the knowledge of how not to make a mobile phone. Like I said, most WinMo phones are lessons on what not to do - styluses, resistive touchscreens (agreed there was a time capacitive touch didn't exist) hard-to-use multitasking and an inflexible, hard to customize OS (I felt that pain too, but, luckily, Windows CE was almost ready to run on our hardware).
There is, indeed, a ton of work involved and zillions of ways things can (and often do) go wrong, but, luckily, you don't have to build Windows Mobile phones to learn that. The Nokia folks, for instance, always had top notch hardware and never built a WinMo phone.
Groklaw is right to write that. If you write software that will ever be in the public eye, you shouldn't look at software patents because they make you more liable for damages in infringement cases.
The constitution authorized congress to create a system "to promote the Progress of Science and useful Arts" by publishing information that innovators would want to look at. The system we have now hinders progress, not just in corner cases but across the entire software field.
Can you imagine anyone writing that sentence if we had a patent system that worked as intended? I can't. If the patent system promoted progress, innovators would constantly be reading patents.
Academic papers at Arxiv and elsewhere are far more useful.
The only way I can describe it is that its like a artery of someone that keeps eating bacon long after their doctor advised them to stop. The space keeps getting blocked up more and more. It is inevitable that serious problems are bound to occur and cause ever greater friction to innovation.
On patent trolls & the 500 billion: The Private and Social Costs of Patent Trolls (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1930272) Abstract: In the past, non-practicing entities (NPEs) - firms that license patents without producing goods - have facilitated technology markets and increased rents for small inventors. Is this also true for today’s NPEs? Or are they “patent trolls” who opportunistically litigate over software patents with unpredictable boundaries? Using stock market event studies around patent lawsuit filings, we find that NPE lawsuits are associated with half a trillion dollars of lost wealth to defendants from 1990 through 2010, mostly from technology companies. Moreover, very little of this loss represents a transfer to small inventors. Instead, it implies reduced innovation incentives.
Also some great TIL about German vs Uk innovation.
Even most patent attny's that are more than happy making money off this broken systems excesses agree that there many serious problems abound
But, regarding the do-it-yourself-part, no, not really. First, the amount of work you have to do is a full-time job. Most people already have a full-time job, so it's not an option to deal with a civil case full-time. Second, there are many rules and regulations that a lay-person will just not know. It's not feasible for them to deal with a civil suit on their own. And, unlike criminal cases, in the US, you have no right to a lawyer for civil cases.
One of the things to remember about civil lawsuits are that the parties are generally treated as if they are on equal footing, and the standard of proof is "preponderance of the evidence", rather than "beyond reasonable doubt".
The criminal justice system is setup to mitigate the advantage of the government over the accused in a case that could result in loss of freedom (or even loss of life). The civil "justice" system is there to resolve disputes between theoretically equal parties in cases that mostly come down to money.
In practice, of course, our adversarial system gets thrown completely out of whack by that same money, but for the moment, the law is what it is.
EDIT: A well reasoned rebuttal is worth a thousand downvotes. But my fault for getting involved in religious wars...
EDIT: I also want to note that whoever is doing this is not content to downvote this comment, but is also looking up my comment history and downvoting old comment of mine (fair warning to anyone posting in this thread)
But hey, it's in line with what most of HN thinks about patents, so we're all willing to take it at face value.
Doesn't sound like pj is doing much critical thinking either. Just accepting B&N's assertions at face value, because they line up with common "knowledge" about patents.
Groklaw's bias worked fine with SCO because SCO was a total fraud. The same bias quickly wears thin when discussing the current Android cases.
It's still very unclear to me what MS is doing that is illegal. They have no mobile monopoly. And "demanding" design guidelines certainly isn't illegal.
BN can sue because MS isn't nice to them, but that's about all I see.
Another way to see it is that Microsoft is one of the richest companies on Earth because of their monopolies and when they use their prodigious resources to force companies to cave instead of litigate (because they could easily litigate said companies out of existence) it's an indirect abuse of monopoly.
This is what I though on about 5 minutes. There's probably a whole lot more in there waiting for more dedicated brains.
All they have to do to leverage their desktop-related monopolies is to sit tight and do nothing. And that's why it's really bad.
If it's hard for Apple, you can imagine it's much harder for everyone else.
See this PDF for a list of the trivial patents:
>Microsoft has shown its intent to drive out other open source software using overaggressive patent enforcement. The Microsoft dominated MPEG-LA consortium recently sent out a request for patents that would cover Google's VP8 video codec, and one company has already filed a private antitrust complaint against MPEG-LA for this behavior.3 MPEG-LA is a patent pool organized to collect and license patents on the H.264/MPEG video codec, a method of digitally encoding video files and decoding them for playback. Google is attempting to introduce its own codec, the VP8 codec, to compete with the MPEG codec. Once again, by seeking non-essential patents to assert offensively rather than defensively, Microsoft intends to drive out competition from open source developers.
Is MPEG-LA really dominated by MS in any sense of the word? Just curious.
MS seems to be actually paying them more for licenses in the end than what they get for a few patents they have in the pool. Not sure about Apple.
In any case, they're supporting VP8/WebM via user installed plugins in IE and have stated that they're not shipping it with the OS because they're afraid of patent trolls suing them for very high damages because they would be liable for hundreds of millions of Windows licenses.
I never stated that their revenue comes disproportionately from Microsoft. What I stated was that Microsoft pays them more than what Microsoft gets from it for Microsoft patents in the pool, which is a completely different thing.
Lets say Microsoft pays the MPEG-LA $50 million/year and gets back $2 million/yr for their patents. So net payment to MPEG-LA is $48 mil/yr.
But MPEG-LA has a LOT of other licensees like Apple that licenses it for Quicktime, iMovie, all OS X and iOS devices, Google for YouTube, Adobe for Flash etc. etc. Lets say they all pay them $452 mil/yr. So total revenue of the MPEG-LA is $500mil/yr but Microsoft's share is not disproportionately large in that number.
I don't know about MS's share in MPEG-LA's revenues, all I stated was that they paid them more than what they got back in licenses.
The point is that MSFT might pay more into the MPEG-LA than it gets precisely so it can influence the MPEG-LA to take actions that are beneficial to Microsoft's other business interests. You are apparently trying to take that same fact and argue in the opposite direction, and I don't think the logic works that way.
I don't see how it's Microsoft's choice to pay more or less. The terms are pretty clear and the same for all.
I also don't see how paying more will allow it to have more influence on the MPEG-LA, they're more like a customer. That's a pretty torturous argument to make.
I have no idea.
> MS seems to be actually paying them more for licenses in the end than what they get for a few patents they have in the pool. Not sure about Apple.
Microsoft pays more, but they get more out of it. The more entrenched H.264 is, the bigger the barrier to entry for competition. If your competition has to pay the royalties, and you want to compete against Microsoft, the competition is at a disadvantage by being forced to pay those royalties.
Are you claiming that Barnes & Noble is perjuring themselves and Groklaw is helping to spread the misinformation?
"incredibly insignificant patents Microsoft has the nerve to use against Android"