Xbox 360 Should Be Banned from U.S. for Violating Patents, Judge Says | Hacker News Reader

Xbox 360 Should Be Banned from U.S. for Violating Patents, Judge Says

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99 pointsevo_968 comments

The patent system as it exists today is a far cry from what the founders had in mind when, in the Constitution, they granted Congress the power to "promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

Nowadays people think of patents as a way of protecting the "property" of inventors, and so patents are granted and enforced according to that principle, regardless of whether they promote or hinder progress. The usage of the words "theft" and "piracy" to refer to patent and copyright infringement is a symptom of this state of mind.

Thomas Jefferson et al would have called this nonsense. By its very nature, an idea -- once divulged -- cannot be someone's property, and it should not be treated as such. To prevent the free flow of ideas through a populace is, in many cases, harmful. (Imagine a group of hunter gatherers in which one family has patented the idea of farming.) At most, limited monopolies should be granted to prevent situations in which nobody is incentivized to create due to rampant copying. But we still have to be judicious in granting these monopolies:

    "...it may be observed that the nations which refuse monopolies of invention
    are as fruitful as England in new and useful devices."
    -- Thomas Jefferson

    "But grants of this sort can be justified in very peculiar cases only, if at
    all; the danger being very great that the good resulting from the operation
    of the monopoly, will be overbalanced by the evil effect of the precedent; and
    it being not impossible that the monopoly itself, in its original operation,
    may produce more evil than good."
    -- James Madison

It's painful to see copyrights and patents today accomplishing the polar opposite of what they were intended to. But we've been gradually heading in this direction for the last 200 years.

In my opinion it's a combination of (a) allowing businesses to have too much say in law-making, (b) Congress + the populace not being sufficiently educated about the implications of copyrights and patents, thus giving more power to the natural tendency to think of ideas as property, and (c) the Supreme Court following overly non-interventionist policies and allowing Congress to make unconstitutional decisions.

I find this constitutional fundamentalist attitude to be just as wrong. The founders had no idea how the future would turn out. Lets just face facts: the idea of owning knowledge can never work out fairly thus patents in themselves are unethical and unfeasible. The system should just be retired. The founders were wrong about this the same way they were wrong about slavery and other 18th century issues. They are forever limited by their 18th century outlook.

There is no way you can have a "fair" patent system. Its like having "fair" slavery. Just let it go.

I think there needs to be some way to give companies an opportunity to recoup their investment in new ideas. I'm just not sure what we have now is working.

They have the same chance everyone else does: the market.

Without patents, drug research and development would have to be nationalized. The costs are enormous and drug prices drop 90% in the US after patent expiration. I would rather have new drugs and high prices for a few years than no new drugs at all or nationalized drug r&d.

I think the HN community's approach is wrong: patent abolishment isn't optimal, heavy patent reform is. Patent terms should be regulated and adapted in each industry like the Fed Funds Rate, not like the 10 commandments. Software is definitely an example of where they should be abolished, though.

I agree. The universe isn't so perfect a place that we can consistently count on all-or-nothing strategies. Sometimes we have to get a little messy to devise a working system. Drug research is a great example of an industry where patents really are necessary to promote the progress of science.

Some drug researchers might disagree.

Open Source Drug Discovery - http://www.osdd.net/

Research article on PLoS; "A Kernel for Open Source Drug Discovery in Tropical Diseases" - http://www.plosntds.org/article/info%3Adoi%2F10.1371%2Fjourn...

> Drug research is a great example of an industry where patents really are necessary to promote the progress of science.

It's too easy to say it this way. Any data to show us why the case of the pharma is so different from others ? The costs involved in the pharm industry depend heavily on: - government regulation - expected returns

It's not evolving in any kind of "free market" at all. It's a very poor example to use to justify patents.

Good point, enough reform in this area may make patents totally unnecessary. I shouldn't have called it a good example without knowing more about it. However, my intuition is that there could exist a situation or industry in which patents are justified. We should be careful not to dismiss them wholesale, and instead should only dismiss them in areas where we can find superior alternatives.

Drug research and development is largely nationalised, at least if we are talking about drugs for preventing or curing the most virulent diseases and not about stuff like viagra.

Viagra was a by-product/side-effect of a (ineffective) drug for angina and hypertension. I'm not sure how much UK government money was involved in that work, but I'm assuming a lot, as we're generally all for that kind of thing.

Also of relevance, the UK patent on using a chemical that gives you an erection as a cure for impotence was thrown out for being obvious. But the patents on how to mass manufacture it are still in effect.

That's cool, but given the subject matter it is hard to treat it with anything other than absolutely no, you-know-what.

The reason drugs are so expensive to develop is the FDA testing. So instead of patents the FDA can just enforce a rule to not allow generic drugs unless they've gone through the same rigorous testing process the original guy did.

This is probably something the FDA should do anyway. Generic drug makers can look at a drug's signature, but there are so many other variables that can affect how a drug performs (quality control of the factory, quality of ingredients, recipe, procedure, etc.) that the FDA should require generic makers to go through the same testing process because they're different drugs.

The generic drug makers will have less overall expenses to bring a new drug to market (because someone already figured out a particular protein sequence that works in XYZ manner), but the original inventor will have time to milk the market as the first-to-market, encouraging innovation, and we can still get rid of our awful mess of a patent system.

Generally if you've built up a whole system (like the patent system), and it's really only beneficial for a select few (pharma), then maybe it'd be better to design a different system just for them (like the one proposed above) and don't make everyone else suffer the consequences.

The FDA can also go overboard. Recently (~1.5 years ago) they seized 'birthing pools' as 'untested medical devices.' These are basically inflatable pools for women that want to have water births. To give some context, the operating table in a hospital does not qualify as a medical device (and therefore no FDA testing), but apparently inflatable pools that women give birth in require FDA testing.

And drug research is largely nationalized. Drugs for "important" diseases are typically discovered by academic researchers and the R&D of a pharma company is either focused on a) how to scale up production of the drug b) how to market the drug c) drugs to cure lifestyle issues and psychological issues. Anything else is too risky or requires too long of an investment timeline.

To be fair only some of the founders were wrong about slavery.

Even back then slavery was contentious, just as patents were.

In either case it doesn't really matter what the founders thought as ideas should be tried on their merits, rather than who thought of them.

I think looking back at what the original law-makers intended is useful in that it removes the veneer of respectability that something 'enshrined in law' might otherwise have, when people more respectable and revered (authors of the constitution) are shown to have doubted and questioned their (patents) validity. Lastly it shows how far we've come in a (relatively) short time. From "very peculiar cases only, if at all" to inalienable, perpetual rights that monied interests have over ideas.

Things started to turn ugly once legislative bodies became more concerned by the letters of laws instead of the spirit of laws. The spirit is in most cases valid (e.g. you shall not kill), the wording on the other should be adopted in such a way that the spirit fits the situation (changed due to technological developments for example).

You're right. Whether or not the we should stick to what the founders wanted is irrelevant.

However that does not mean the founders' original intent for patents isn't a better interpretation, and that the modern interpretation isn't still a bastardization of that better interpretation.

You can't just say the founders were wrong on slavery. You have to say which were wrong. They had to make a compromise to get states to agree to the Constitution, which states perceived as threatening their rights more than the Articles of Confederation. They compromised with the understanding that the problem will be resolved later, and it ultimately was decided 70 years later in the bloodiest war in American history.

Another reasons is that Congress, observing that patents and inventions are correlated, has made very effort to encourage patents so as to cause more inventions.

Don't forget that most people in Congress are lawyers. And lawyers will see the patent system providing a lot of value... because you typically need lawyers to file for a patent.

It's not necessarily a case of "keeping the patent system ensures jobs for lawyers." It's probably more a case of, "if you have a hammer, everything looks like a nail."

I used to naively hope that situations like this would force the government to sit up and take notice at how badly the patent system is broken and how it hurts most industries more than it helps them, especially hurting the "little guys" (who are often invoked in defense of the system) disproportionately since the system is set up to cost so much to "play the game".

But now I know that in the end each will pay the other their necessary "protection money", the lawyers will skim a huge amount off the top and big corporate business will go on as usual.

I like how one of his justifications is that upholding copyrights is more in public interest than our entertainment.

It is

No it's not.

(See what I did there? I responded to an unsupported statement of fact with another unsupported statement of fact. Both our arguments are equally valid, i.e. not at all. Perhaps next time you post on HN you could add some arguments to support your position, if only out of courtesy to those of us who cannot read your mind to see the no doubt infallible logic behind your opinion.)

I voted in favour of your response, because the sort of snark that you presented resonates with me, however, two things:

1. This kind of response (along with the kind that I am giving now) is often just as much a problem as the initial non-useful post in terms of "useless thread clutter". Things could go either way on whether it's really useful to point out the situation to a user "for their benefit" -- the voting system exists partly to let us wash unproductive responses out of sight.

2. You particularly noted "next time you post on HN", and that made me feel a bit sick. There's little more elitist than saying to a newbie that they need to change their behaviour "around here", or "to hang out with us". It shows a greater concern for our little clique than for the ideal of argumentation, or for the dissemination of knowledge to people who could use it.

All that said, I'm clearly not following my own advice here -- in my defense, I'm making the bet based on your post that you're someone willing to consider your actions and either respectfully disagree or change, but I could be wrong. My response likely ought to be voted down as further useless junk.

That being said, there is value to posts like the above. If we want to avoid becoming Reddit, we must self moderate and make an effort to stabilize our culture.

I don't see where copyright law comes into this.

I probably should have said 'IP rights' but you know what I mean.

Referring to his quote, "a strong public interest in enforcing intellectual property rights; not enforcing those rights in light of a potential economic impact occurs only in exceptional circumstances"

In a system written by lawyers, whom else would you expect to emerge the winners?

Did anyone else notice that FOSS Patents gets a citation in this article?

The author, Jared Newman[1], needs someone to point out to him that he is citing an article written by someone with a major conflict of interest, the paid Microsoft shill, Florian Mueller[2].

If we ever hope to have public opinion shift on the patent issue, this type of journalism will only prolong the struggle.

[1] https://twitter.com/#!/OneJaredNewman

[2] http://www.groklaw.net/article.php?story=20120419070127103

Why would he tout what is clearly bad news for Microsoft?

Personally, I'm sick of all this injunction nonsense, but they need some way to fight back against Microsoft's patent aggression.

Maybe they should be banned. Only something of this magnitude would draw the necessary level of interest from apathetic voters to make this a campaign issue, thus positive change might result. If a couple of years without Xbox's is the price for patent reform, I would gladly pay it.

In this case though it wouldn't work out that way because the topic is pretty arcane.

Unless the issue can be reduced to a catch phrase that actually encapsulates the idea, or people see some obviously valuable thing which is clearly being taken away from them; then its very hard to sell this.

"The Xbox 360 violates four Motorola patents, according to ITC Administrative Law Judge David Shaw, Wired reports. Shaw made his initial ruling against Microsoft in April, and now recommends a ban on sales and import of the game console."

Didn't Google just buy Motorola?

This could get interesting.

I'm not sure that I see it that way. If anything I'd think Google would find it in its (and, frankly, our) best interests to let the patent war escalate further. The more of a mess it is, the more likely someone in government will step in to intervene. At this point it's becoming routine for every successful consumer electronics device to see a patent ban somewhere. That's not sustainable. I hope.

I hope too.

The government will step in alright and investigate Google/Motorola for anti-trust violation. Just like what is happening in the EU. And I expect them to be severely punished.

The fact is that Google/Motorola behaviour in abusing the principles of FRAND is arguably some of the worst seen in the history of the industry. Almost every single consumer electronic product would have either (a) not existed or (b) be significantly more expensive without the fair licensing of patent pools.

Patents/FRAND pools are just a way for big old companies tax the little guys, not for inovations, but by making an standard encumbered with patents. Completely the the opposite of what patents where supposed to do. So, in a way, FRAND is actually a abuse of the patent system in more ways than not.

Because of FRAND you already have products that do not exist and products that become significantly more expensive.

You clearly don't understand the significance of FRAND at all. And your last statement is pure and utter nonsense.

Please list an example.

Please list an example.

Microsoft's VC-1 is an example of something that was developed internally and released to a standards body, then was later encumbered by patents pooled by others.

Adoption of Ogg Vorbis was significantly hindered by vague threats of patent encumbrance from patent pools established around international standards.

WebM was threatened by MPEG-LA with an anti-VP8 patent pool.

Likewise Rambus very nearly succeeded in fooling a standards body into issuing a standard based on submarine patents (and did fool Intel into betting a generation of chipsets on it). FRAND is a good idea (well, an acceptable one anyway) that has never worked in practice. All systems can be gamed.

You honestly think this is worse than what we've seen from Apple, Nokia, Samsung and Oracle? Seems pretty par for the course to me. Why single out one bad actor for what is clearly an endemic problem?

Afaik, Apple at least has not asserted patents covered by FRAND terms.

You don't understand FRAND/patents at all. A patent will rarely impede prevent entire classes of products being made. But without FRAND many standards would never have taken off without cheap and fair licensing. No Bluetooth. No WiFi. No USB. No XBox. No iPhone.

And the reason Google/Motorola is being singled out is because AFAIK nobody has done this before.

Without FRAND, standards would be fine if they required royalty-free licensing instead, which is preferable.

Google/Motorola are definitely not the first to go to trial over high FRAND licensing fees (see below). The only thing remarkable with the Google/Motorola litigation against Apple and Microsoft is that it was a defensive move on being sued by Apple and Microsoft. It is true they didn't sue Motorola over FRAND patents [EDIT: or did they? see at bottom]... Not by moral virtue I think, but because their patents are far too insignificant to be required by a standard. Note that FRAND is a vague notion that doesn't say what "fair", "reasonable" and "non-discriminatory" should mean in practice. It leaves place for negotiations and even injuctions in case of infringement. Here's a good discussion of FRAND misconceptions:

http://blog.patentology.com.au/2012/02/fraught-issue-of-fran...

Excerpt:

Why should a company be able knowingly to use a patented technology while dragging out licensing negotiations with the patentee, secure in the knowledge that the greatest power the patentee has if agreement cannot be reached is to ask a court to rule on license terms and royalty rates?

Now it's true that the fees demanded by Motorola at this stage (2.25% of the sales price) are higher than usual. But that's after Apple and Microsoft violated their obligation to contract a license for the patents, and sued Motorola over their own patents. It is also expected for a party to start with a higher asking price than what they will eventually settle on. And it is not completely out of line with other FRAND licensing fees. For example Qualcomm routinely collects over 3% of the device cost: http://www.trefis.com/company?hm=QCOM.trefis&driver=idQC... (from http://www.hoista.net/post/17365252561/google-wants-1-7-bill...)

Another example is Nokia who recently settled with Apple for around 4.5% of an iPhone cost: http://www.guardian.co.uk/technology/2011/jun/14/apple-nokia... (this was also a case of FRAND patents, see http://www.scribd.com/doc/28285432/Nokia-s-Motion-to-Dismiss...).

How does that compare to what Motorola asks for? From the Guardian article, Nokia takes about 4.5% of the estimated average $264 cost price of an iPhone, which Apple sells to retailers and phone networks for an average of $660. Motorola asks for 2.25% of the sales price, which corresponds to 5.6% of the device cost. Not so different from the Apple-Nokia deal.

EDIT: According to Motorola, Microsoft used FRAND patents to seek an injunction to block Motorola's products:

http://www.itpro.co.uk/639088/motorola-slams-microsoft-paten...

And Microsoft’s complaint with the International Trade Commission sought injunctive relief against Motorola Mobility based on Microsoft’s own standards essential patents. With its recent actions, Microsoft has simply reversed its position on FRAND in order to suit its current litigation strategy.

Apple and Microsoft don't have clean hands here - and that's even if you ignore their lawsuits against Android.

The history is very relevant:

1. Motorola had some FRAND patents (that are not part of a patent pool). 2. They contacted both Apple and Microsoft to get them to license them. 3. After years of failed negotiations, Motorola took them to court to get them to pay up. 4. Now, Apple and Microsoft are trying to use the FRAND offer that they previously declined as a get-out-of-jail-free card (i.e. no blocking current products) while they still fight over past infringement.

If that's how it works, why would anyone with even half a brain ever bother to license a FRAND patent pre-lawsuit? Best case, the patent holder doesn't notice or decides you're not worth going after. Worst case, you get to put off payment until after the patent holder sues.

Sounds like a great way to encourage future FRAND standards, right?

Apple seeks injunction vs HTC for patent infringement; ajross declares patent wars evil incarnate [1].

Google subsidiary Motorola granted likely injunction against Xbox 360; ajross suddenly ok with patent war.

[1] http://duckduckgo.com/?q=%22hacker+news%22+ajross+google+pat...

You're right. My opinion has changed. Apple vs. HTC is a net good too, at least in the sense that it brings us closer to some level of regulatory relief.

I'll give you some props for consistency there.

I'm not some anti-gubmint crank but I do think it's a little wishful to think the US government is going to do anything constructive here much less fix everything anytime soon.

What I see as more likely is the spectre and reality of injunctions leading to a huge round of cross licensing settlements. A good outcome for incumbents in general and a bad one for prospective new entrants who bring the biggest growth.

They bought Motorola Mobility; not the unit of Motorola that makes processors.

This is about Motorola Mobility. They are the ones suing here.

Motorola is doing some serious FRAND abuse and Google has promised that things won't be any worse under their reign, which is pretty small comfort.

http://www.scribd.com/doc/80976133/12-02-08-Google-to-IEEE-o...

"The ideal outcome for consumers would be a broad cross-licensing agreement that would allow the Xbox 360 and Motorola phones to co-exist. But Microsoft is already getting hefty patent ransoms from other Android phone makers, and likely doesn’t want to let Motorola off the hook too easily, especially now that it’s owned by Google."

Ok, not directly related to the bulk of the article, but that point up above got me thinking.. Couldn't it end up benefiting MSFT if Motorola (now GOOG controlled) doesn’t pay-up under its Android licensing program? If essentially all other non-google-owned OEMs are paying a licensing fee and essentially GOOG itself manages to dodge it, it could further drive a wedge between them (Samsung, HTC, et all v. Google/Motorola).. leading to those OEMs (who currently dominate the market) shifting focus to Windows Phone, and thus benefiting MSFT in the end..? Just a thought; thought I’d share..

Well... This is getting very entertaining.

Normally, I'd condemn Motorola's attitude, but Microsoft has been patent-extorting every Android manufacturer they can intimidate. I really hope Motorola can beat some sense into Microsoft.

That would teach Microsoft a valuable lesson about harassing Android over ridiculous software patents.

But the valuable lesson they would draw from it all is "we need to patent every thought a Microsoft employee has", which is probably not the lesson you're imagining.

The patent system is like watching a scene from Alien vs Predator...

"Whoever wins, we all lose" is surprisingly apt as well.

This is one of the reasons I sometimes commit code under a pseudonym rather than my own name, go ahead and litigate an imaginary person, I honestly could care less who holds what patents on my code - if it works I'm using it.

This won't help anyone. You don't litigate against software authors. Patent suits are filed (or threatened) against the people who are selling/offering or otherwise making profits from a plausibly infringing device; because that's where the money is.

I think maybe you're confusing patent law (which is a civil thing about damages) and copyright law (which sometimes has criminal penalties). It's not illegal to write and publish source code implementing patented algorithms. In fact: the patent itself is in fact supposed to be an officially published version maintained by the government.

At best, anonymous contributions might insulate you from being subpoenaed because they can't find you.

My goal is to insulate myself from the stupidity that is software patents, I generally come up with the ideas myself while working but then search for prior implementations to see it has been patented (some of which should never have been given a patent).

I've actually had a similar experience with this. I was working on our company website and came up with something remarkably similar to Amazon's One-Click Ordering System. Having ordered a max of 3 things off Amazon in the past 10 years; I had absolutely no idea they had any such feature. Continuing my work lead out to the architecture and rough code-outline of this (I was unusually excited so I did a bit of pre-coding). Then deciding to 'do my homework' I went off to find prior implementations; low and behold I came across Amazon's One-Click Ordering Process. (And also the information covering the two-click ordering process lawsuit that still went in Amazon's favor).

So my question is if I had implemented such a system would I have been liable? The sad thing is, looking at the way the patent system is now, I WANT to say yes. Even with it being my own code just the process being patented would have prevented me from using it; despite the fact that I came up with a similar process completely on my own.

It just seems to me that in a way the patent system stifles...innovation. I am now very concerned about putting my efforts towards something without checking for a patent first. I'd like to see someone with more experience and legal knowledge could expand on Patents and Patent Law in general.

Meanwhile, MS won another round in Germany against Motorola.

http://www.engadget.com/2012/05/24/microsoft-motorola-sms-pa...

Scorched earth

Or: We had a Mutually Assured Destruction standoff for years, but now the missiles are flying.

Maybe if the 360 is banned, people will finally wake up to how absurd the patent system is and demand reform.

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