patent

RAMBUS: The battle over hold-ups in industry standard setting

If you help your industry adopt your patented technology as a standard and then sue companies that use the standard, bad things can happen. You might lose your patent rights, be sued or prosecuted for antitrust violations, unfair competition, and fraud. Even if you ultimately win your case at trial ... or on appeal ... the cost of getting mired in allegations of abusing the standards process can be high. Rambus, a memory design and patent licensing company, presents a case study in how costly and time consuming standards-related patent disputes can be. The cost to the industry can be even higher, … Read more

Quick appellate review of patent claim constructions: Is the door opening for interlocutory appeals?

The most difficult issue in many patent cases is claim construction, that is, the court's interpretation and articulation of what exactly the claims of the patent mean. Interpreting patent claims is hard work. It usually involves consideration of technical jargon that, especially when significant time has passed since the patent was filed, may be obsolete or just plain awkward. As a result, courts don't always get claim construction right the first time. Indeed, a substantial percentage--depending on whom you ask, the anecdotal figure is around 50 percent--of trial court claim constructions are successfully challenged on appeal.

The high reversal rate for claim construction is especially problematic because most claim construction decisions cannot be immediately appealed. Interpreting the claims is only the first step in the infringement analysis. After they're interpreted, that construction has to be applied to the accused product or process. Most often that's something the jury is supposed to decide, which means you may have to go through a long and costly trial before a judgment is entered. That judgment--either that the patent claims are infringed or they are not--is what the U.S. Court of Appeals for the Federal Circuit (the "Federal Circuit") ultimately reviews.

However, if the claim construction was wrong in the first place, the jury's verdict on infringement is usually wrong, too. That means a second trial will likely be necessary, which results in more work for the courts, more time lost in litigation, and more money spent on lawyers. The rub, argue critics, is that much of this additional expense and inefficiency could be avoided if claim construction opinions could be appealed prior to a final judgment on infringement.

… Read more

A unique brand of monopoly

A patent is a deal with the U.S. government. In exchange for elevating the knowledge of the public in general by publishing a description of an invention, the government gives, in return, a "monopoly."

But the monopoly in the patent world is a different animal than what most would consider a true monopoly. When most people think about a monopoly, they think of the ability of one person or company to assert dominance in a certain market by being the only seller of a product. That is not the case in the patent world. A patent does not guarantee any dominance in any market whatsoever; in fact, it does not even give the patent holder the right to make the patented product at all.

While seemingly counterintuitive, this is the way the patent system has to work because of the nature of patentable inventions. Sir Isaac Newton, arguably one of the greatest scientists and inventors of all time, perfectly but unintentionally characterized the patent system when he said, "If I have seen further it is by standing on ye shoulders of Giants."

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The Microsoft patent emperor with nothing on but a Speedo

You've already seen it on Slashdot. ZDNet also has a great write-up. But for the real meat go to the source, Tom Kemp's blog.

About what? Well, just the contention that

...[o]f the 125 protocols posted on MSDN for Windows Server, 99 of the 125 protocols have no US patents associated with them, meaning 80 percent of the Windows server protocols do not have US patents associated with them.

Jason Perlow rightly asks if Samba got anything real from its patent deal with Microsoft. But perhaps we should stretch this further:

If, in fact, 80 percent of … Read more

Apple looks toward iPhone chat app

At its iPhone SDK event last month, Apple touted an adaption of AOL's instant-messaging client for the iPhone. Now comes news of Apple's own patent application for a chat feature.

The U.S. Patent and Trademark Office published the application, titled "Portable Electronic Device for Instant Messaging," on March 6--the very same day Apple was providing details on its software development kit for the iPhone, including AOL's test version of the first "official" native Web chat for the gadget.

The news of the Patent Office's action was first reported by the AppleInsider site … Read more

Legal injunction bars Dish Network from selling four models of DVRs

Looks like Dish may have spoken a bit too soon.

A little over a week ago, an appeals court determined that Dish Network (formerly EchoStar Communications) had indeed violated a software patent held by TiVo on digital video recorders.

While TiVo gleefully celebrated, Dish expressed disappointment, but assured its customers that none of its products would be affected because the software that was in violation had already been remotely updated by the company some months before.

Now it appears there's just a bit more to the story. Engadget has a blog pointing to notices Dish sent on Monday. The … Read more

Dual-licensing with patents: It's bound to happen

Pierre notes it is "only a matter of time before an open source company decides patents could be used to solidify open source dual-licensing schemes." I think he's right. In fact, I've seen this very issue rear its ugly head within my own company as I've thought through ways to partner with Microsoft and other proprietary companies.

It would be very easy to do as Novell did: Enter into an agreement to make a version of one's software "safe" from patents. It makes Microsoft happy. Presumably it makes one's users happy ("I'm safe from...my vendor and its partners?!").

But it doesn't fix the downstream problem, and it doesn't fix the broken software patent problem. It trades off FUD to make a sale. Myopic and ultimately damaging to one's customers, one's peers, and oneself.

This isn't even remotely intended to be a criticism of any one company or group of companies. It's rather an acknowledgment of an issue that is going to become more and more pronounced over time.… Read more

Microsoft's Ray Ozzie commits to more open source

Ray Ozzie took the stage of Microsoft's Most Valuable Professionals conference earlier today and made some interesting comments on Microsoft's open-source ambitions. He says all the right things, but leaves a bit too much unsaid:

My position toward open source generally is that it's a part of the environment. It's very useful for developers to be able to get the source code to certain things, to modify them. Microsoft fundamentally, as a whole, has changed dramatically as a result of open-source as people have been using it more and more....… Read more

Does Seagate own the patents to the flash hard drive?

Seagate Technology just might have a few patents that make the rest of the storage industry squirm.

Earlier this week, Seagate, the world's largest hard-drive maker, announced that it was suing STEC, alleging that the company violated four of its patents and other intellectual property.

The patents largely revolve around how a manufacturer would take flash memory and make it into a functioning hard drive. Seagate's hard drives store data on magnetic platters. There is more to the drive than the platters, however. Getting the data off of the platters and into a processor requires interfaces, controllers, and … Read more