German Patent Ruling Threatens Microsoft's Windows Phone Earnings From Android

http://www.forbes.com/sites/timworstall/2013/12/06/german-patent-ruling-threatens-microsofts-windows-phone-earnings-from-android/

by salient • 13 years ago

288 67 13 years ago

forbes.com

aw3c2• 13 years ago

Avoid Forbes, use the source: http://www.fosspatents.com/2013/12/federal-patent-court-of-g...

tehabe3• 13 years ago

Florian Müller is in no way an independent source. He has a huge bias towards patents and against Google.

He used to or he is working as a consultant for Microsoft and Oracle. Even though he used to campaign against software patents in the past.

As an old saying goes: He who pays the piper, calls the tune.

Edit: writing English on a Saturday afternoon shouldn't be that hard, right? Wrong! :-(

dbaupp• 13 years ago

I used to or he works as consultant for Microsoft and Oracle

Did you typo something in this sentence?

mtarnovan• 13 years ago

Huge bias towards patents ? This is the guy that launched NoSoftwarePatents.com, right ?

Morgawr3• 13 years ago

For those interested, this seems to be the email/thread that was cited.

https://groups.google.com/forum/#!topic/comp.os.minix/0rgZpp...

ErsatzVerkehr• 13 years ago

In which Linus is calm, friendly, and helpful!

Morgawr3• 13 years ago

He's actually like this most of the time, it's a shame that the media only reports his outbursts. He's an amazing person and surprisingly accepting on other people and fellow developers.

dylz• 13 years ago

http://worldwide.espacenet.com/publicationDetails/originalDo...

dchest• 13 years ago

Apparently, this is a link to the original patent, which automatically downloads PDF of its cover page.

goggles99• 13 years ago

we don’t really have a German or UK or whatever patent system any more, we have a European Union one. So this German case doesn’t apply just to Germany, it applies right across the EU

This has got to be false information. It was mentioned that this was a ruling of the Federal Patent Court of Germany, BPatG. Since when does a German patent court dictate EU patent laws and rulings? does this mean that if a patent court in another EU country ruled the other way that that is now the new EU stance? This makes no logical sense.

Morgawr3• 13 years ago

IANAL but maybe this means it could set a precedent that other countries should consider/follow for similar rulings? Again, I don't really know, feel free to ignore this post.

bjelkeman-again• 13 years ago

"A patent granted by the EPO does not lead to a single European Union-wide patent enforceable before one single court, but rather to independent national patents enforceable by national courts according to different national legislations and procedures."

http://en.wikipedia.org/wiki/European_patent_law

onli• 13 years ago

Other information I find have the same consequence (http://en.wikipedia.org/wiki/European_Patent_Convention#Oppo...):

"A European patent is also non-unitary in that it may be revoked in one Contracting State while maintained in another. However, a national court in one Contracting State may not revoke a European patent in another Contracting State."

This is a bit surprising. At the beginning of the Samsung vs Apple trials, also in Germany, it was widely reported that the german ruling would have EU-wide effects. Those were patent cases as well...

Maybe the difference is between invalidating patents and deciding whether a patent is infringed by another party.

cdash• 13 years ago

Not really sure why you got downvoted for this, but I am pretty sure what you say is true right now. While the EU is moving to a unified patent court in the future for now after the patent has been granted it has to be individually litigated in each country as it becomes just a bunch of seperate national patents.

nawitus• 13 years ago

It' also noteworthy that the European Patent Office is not part of the EU.

1631-• 13 years ago

IANAL, and I am not the one being quoted... with that said, it seems to me that you're reading way too much into that statement, and in the process, more-or-less ignoting the context. To me, what's being implied here is precedent...

brudgers• 13 years ago

IANALE, but my understanding is that precedent, though a primary principle of common law legal systems, is of somewhat lesser importance in systems arising from other traditions. That's not to say the ruling cannot possibly have any significance, only that the bookmakers' windows are still open.

pbhjpbhj• 13 years ago

As I understand it the EPC requires that certain parts of national patent law are read to agree with the convention. So patentability, novelty and the basic building blocks should therefore be harmonised [to some extent] across member states.

The patent courts therefore take in to account rulings in patent courts of other member states and ruling of European patent boards (I forget the exact terminology, sorry). Such rulings are not binding however. So they form what might be considered a weak precedent. (See for example S6(iii)-(iv), or indeed all of Section 6, http://www.ipo.gov.uk/2006ewcaciv1371.pdf "Aerotel/Macrossan"; it's almost boilerplate in these decisions actually as in "Symbian", http://www.bailii.org/ew/cases/EWCA/Civ/2008/1066.html)

In this case it is novelty that is at stake. Novelty is novelty, the same tests are used in Germany as in, say, UK because they rely on the European rulings that provided a series of tests to establish that the novelty lies in a suitably technical part of the invention (this born out of interpretation of the non-patentability of "computer programs as such" in Europe).

IANA(P)L, this is not legal advice.

mtgx3• 13 years ago

So in other words, Microsoft stole Linus' ideas, and then asked everyone to pay them for it. At least going by Microsoft's own logic in general.

Frankly, I've always thought it's ridiculous that FAT isn't at the very least a FRAND patent, considering how much monopolistic power Microsoft had in the desktop OS space, and I'm surprised that in the anti-trust lawsuits against them, this wasn't raised as an issue. I guess back then they didn't really enforce FAT patents the way they started doing after Android took off, and saw it as an excellent opportunity for rent-seeking.

ghshephard2• 13 years ago

Well, patents, much like copyrights, only have value inasmuch as you are prepared to pay to fight it out in court. Copyrights are a little more straight forward, as "invalidation" (absent of plagiarism) is less common (though not unheard of).

The stack exchange guys have a whole site dedicated to finding prior art to invalidate patents. http://patents.stackexchange.com/questions/tagged/prior-art-...

PythonicAlpha3• 13 years ago

Stealing other peoples ideas, that it what today's patent industry is all about.

Today's capitalism itself is about stealing: (Globalization is about) stealing the work power of other people to make as much money as possible with it.

yuhong• 13 years ago

Yea, I suggested that B&N should have brought it up with the DOJ when they got the chance.

ghshephard2• 13 years ago

US5758352 was filed on Sep 5, 1996, so it's still got another three years of life before we can bury the silly thing.

US5960411 A (One Click Shopping) Dies a year later (filed Sep 12, 1997)

A whole host of idiotic patents should be ending their life in the next several years.

trusche• 13 years ago

Unless, or should I say until, Congress caves to the lobbyists and extends the patent life again, no?

Tloewald• 13 years ago

Something both parties will agree on...

mtgx3• 13 years ago

I think US is trying to extend patent life to 30 years or something in the TPP.

tzs• 13 years ago

In 1995, it was changed from 17 years counting from the issuance of the patent to 20 years counting from the earliest filing date. It is not clear whether this should count as an extension or not--it is 3 more years, but the clock starts running earlier.

Before that, the only extension of the patent term was from 14 years to 21 years, which happened in 1836. In 1861, it was shortened to 17 years.

bborud2• 13 years ago

For each idiotic patent that expires I would suspect that more than one idiotic patent is granted.

This nonsense won't stop until we abolish patents. And we really need to abolish patents. Completely. The patent system can't be fixed.

csmuk• 13 years ago

Agree entirely.

I know someone who milked an obvious patent for the best part of 40 years and made a killing on it. People were paid to get the patent reissued and to chase down manufacturers for pay offs.

The patent (wait for it) was:

"the use of printed circuit boards in television sets".

Fortunately it was allowed to expire about 8 years ago when one of the manufacturers assembled a large legal team to claim prior art.

wheaties2• 13 years ago

No, patents serve a good purpose outside of software and in many disciplines. It's just in software where we see the worst side of the patent system, i.e. "tack on computer to anything and it's 'original.'"

moocowduckquack• 13 years ago

The Boeing Patent on lunar flybys is a particulary mental example. SES ditched a recovery plan for the comms satellite AMC-14 because Boeing had patented trajectory's that use the moons gravity to shift orbit and in the end sold it to the DOD, who presumably can ignore the Boeing patent.

http://www.google.com/patents/US6116545

http://www.space-travel.com/reports/Boeing_Patent_Shuts_Down...

PythonicAlpha3• 13 years ago

Another ridiculous software patent that should die!

I people had patented B-trees, there would be no MySQL or other free database and royalities had to be paid on any database of the world.

Or guess, somebody would have patented Quicksearch ... a thousand times more plausible thing to patent.

penguindev• 13 years ago

do you mean quicksort?

PythonicAlpha3• 13 years ago

Oh right! You are so right! Unfortunately, I can't correct the comment anymore.

kintamanimatt2• 13 years ago

They would, just not in the US or anywhere else where such concepts can be patented.

naner• 13 years ago

Back in 2009 Microsoft sued TomTom[1] over what appear to be US versions of this patent[2][3] (EU version here[4]) and won. There were subsequently efforts to work around this patent in the Linux implementation of FAT[5].

1: http://arstechnica.com/information-technology/2009/02/micros...

2: http://www.google.com/patents?id=bUohAAAAEBAJ

3: http://www.google.com/patents?id=cLAkAAAAEBAJ

4: http://www.google.com/patents/EP0618540A3

5: http://arstechnica.com/information-technology/2009/07/vfat-l...

jbuzbee• 13 years ago

The cynic in me says that even if the patent is thrown out, it will have little effect on the extortion that Microsoft is practicing against Android. They'll just find another vague patent to threaten manufacturers with.

mtgx3• 13 years ago

I'm sure they'll try. But what matters most is that their patent threatening was already on shaky grounds to begin with. If someone like Samsung stops paying them, it might have a domino effect, and sooner or later more companies will try to actually test Microsoft's patents in Court. I think it's only a matter of time anyway, especially if this ruling remains permanent, which would embolden Android OEM's.

throwawaykf4• 13 years ago

Same thing happened at the ITC last year (except I'm not sure if an ITC ruling can actually invalidate patents):

http://www.h-online.com/open/news/item/VFat-patent-could-be-...

However TFA is being silly in claiming it threatens any significnt portion of MSFT's licensing revenue. Companies that size don't typically license individual patents, they license portfolios of patents.

Now the following is all speculation, since these licensing deals are very closely guarded, but from the few I've heard of: I'm guessing Microsoft's "smartphone" (or maybe the "linux") portfolio has dozens of patents, each of varying value, of which this was just one. So the portfolio's value will decrease a bit, but I'm guessing not by much.

davesims• 13 years ago

TIL Microsoft makes (a lot) more money on Android than Google does.

krsunny• 13 years ago

This title is confusing.. "From Android" ?

WildUtah• 13 years ago

Microsoft's earnings from Android trolling are not a matter of public record. Each agreement M'soft has made is secret.

In fact, there is no strong, solid evidence that M'soft is making any money at all off Android. When Barnes and Noble's Nook refused to pay the danegeld, M'soft sued and then settled to avoid discovery. Nook actually got paid by M'soft in the settlement, though M'soft ended up with considerable control of the unprofitable Nook in exchange.

Speculation is that HTC agreed to make and market Windows Phone phones instead of paying royalties. If that kind of agreement was common, it's no wonder that all the non-Nokia Windows Phone phones were garbage: They were produced under duress.

Also, my Android 4 devices no longer support any kind of FAT filesystems the way my Android 2 phones did. I think Google already started making FAT optional just so as to avoid paying for patents like this one.

jacalata• 13 years ago

Sounds like wild speculation, without any citations.

belgianguy• 13 years ago

While I do speculate that Microsoft has more vague patents that it's using to sap Android OEMs, I do think this was one of the more prominent patents, as Microsoft itself went on the offense with it (IIRC it tried to get Motorola phones banned for violating it).

It made my day to see that a comment by Linus Torvalds himself made this patent end up in the garbage bin of IP harassments.

German Patent Ruling Threatens Microsoft's Windows Phone Earnings From Android

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