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.
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."
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
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.
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.
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
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