Business Tech

A senior lawyer at Microsoft is calling for the creation of a global patent system to make it easier and faster for corporations to enforce their intellectual property rights around the world.

In a blog posting on Tuesday, Microsoft's Deputy General Counsel Horacio Gutierrez said that a backlog of patent applications internationally was needed to tackle the 3.5 million pending patent applications around the world--including around 750,000 in the US.

"In today's world of universal connectivity, global business and collaborative innovation, it is time for a world patent that is derived from a single patent application, examined and prosecuted by a single examining authority and litigated before a single judicial body," said Guiterrez. "A harmonized, global patent system would resolve many of the criticisms leveled at national patent systems over unmanageable backlogs and interminable pendency periods."

Guiterrez went on to praise efforts to harmonize international patent systems through projects such ad the Patent Prosecution Highway and the "IP5" partnership but said more needed to be done to allow corporations to protect their intellectual property.

"By facing the challenges, realizing a vision, overcoming political barriers, and removing procedural obstacles we can build a global patent system that will promote innovation, enrich public knowledge, encourage competition and drive economic growth and employment," he added. "The time is now--the solutions are in reach."

Microsoft's calls to speed up the issuing of patents come shortly after the company was prosecuted in Texas for patent infringement concerning its Word application. In August, US District Court for the Eastern District of Texas issued a permanent injunction that "prohibits Microsoft from selling or importing to the United States any Microsoft Word products that have the capability of opening .XML, .DOCX or DOCM files (XML files) containing custom XML", according to a statement released by attorneys for the plaintiff, i4i.

Commenting on Microsoft's appeal of the ruling late last month. i4i chairman Loudon Owen told ZDNet UK's sister site, CNET News, that the software giant's attitude was "extraordinary." "It captures the hostile attitude of Microsoft toward inventors who dare to enforce patents against them," Owen said. "It is also blatantly derogatory about the court system."

Microsoft's stance on stronger software patents has attracted opposition from the open-source community and other antipatent campaigners.

The founder of the GNU Linux project Richard Stallman, recently warned against the use of Mono software tools as they exposed users to potential patent violation accusations from Microsoft. In an article published by the Free Software Foundation, Stallman said that "only fools would ignore" the threat poised by Microsoft's patents.

The UK Pirate Party, which was registered by the electoral commission last month, is also opposed to the current patent system--especially in the area of health care--and has put reform of the process at the center of its campaign for the next election. "Monopolies maintained by companies producing life-saving drugs mean people are dying, as they can't afford (treatment)," the party's leader Andrew Robinson told ZDNet UK last month.

Microsoft's backing for greater cooperation on the issue has the backing of other organizations. The World Intellectual Property Organization is planning to hold a conference on global enforcement of intellectual property rights in Geneva on the 17th and 18th of September. "IP systems need to keep pace with globalizing trends in innovation and business practices," the organization said in a statement. "The symposium offers stakeholders an opportunity to explore how existing highly diverse national and regional IP infrastructures can be developed to support the dynamics of innovation which is increasingly transnational and borderless."

FSF Europe and the UK Pirate Party were approached for comment but did not reply in time for this story.

Andrew Donoghue of ZDNet UK reported from London.

According to Nvidia on Tuesday, the U.S. Patent and Trademark Office has initially rejected an additional eight Rambus claims that Nvidia challenged.

The additional eight claims are based on two patents that Rambus has asserted against Nvidia in litigation. This follows the USPTO's rejection last month of 41 other claims in seven patents that Rambus had asserted, Nvidia said.

Rambus filed patent claims against Nvidia in an International Trade Commission action in November. The ITC litigation involves memory controllers--which handle communications between memory chips and other silicon--related to graphics processors.

"We are pleased that the USPTO decided to review the patentability of these two additional Rambus' patents and continued to agree with Nvidia's challenge to these eight claims," said David Shannon, Nvidia executive vice president and general counsel, in a statement.

Rambus, which develops high-speed memory chip technology, also commented on the announcement.

"As part of the multi-pronged approach to delay paying Rambus for our patented inventions, our litigation opponents have filed requests with the U.S. Patent and Trademark Office to bring into question the validity of some of our patents. We have seen this tactic for years," according to a Rambus statement Tuesday. "This is a very long process, and the patents remain valid during the whole process," Rambus said.

Rambus is seeking to block importation and sale of Nvidia products that it claims infringe on its patents.

The ITC case goes to trial in August and a final determination is expected in 2010.

Ever since Microsoft dropped its bombshell on Linux, claiming that the open-source operating system violates 235 of its patents, the Linux community has responded with a cogent counterargument: "If we're, in fact, infringing, point out the infringements and we'll simply code around your patents."

With Microsoft's lawsuit against GPS device manufacturer TomTom, Microsoft gave the community what it wanted, which has now resulted in the Linux community coding around Microsoft's two FAT file-system patent claims against Linux.

Two down, 233 more to go?

In 2008, Microsoft filed suit against TomTom for patent infringement related to GPS technology and its FAT file-system patents, allegedly infringed by TomTom's use of Linux. The two parties eventually settled, but Microsoft gave enough of a clue as to its patent claims that the Red Hat-sponsored Open Invention Network and others set off to sift through the merits of Microsoft's patents and, if possible, code around them.

As Andrew Tridgell recently explained to the Linux kernel mailing list, it would appear that the Linux community has accomplished exactly that, providing a workaround to Microsoft's patent claims.

The reasons are somewhat technical, but the approach seems to pass muster, as Ars Technica reports:

The Linux Foundation arranged for the patch to undergo extensive review by patent lawyers. They are confident that the patch will effectively evade the common namespace method described by Microsoft's patents. It will also function properly in virtually all cases. The only situation in which it will be problematic is when the data on the filesystem is accessed from old versions of DOS or Windows that still require the 8.3 filenames. Tridgell believes that such a scenario is rare enough that it will not impact a significant number of users. Those who require compatibility with those older versions of DOS or Windows can use the Linux "msdos" filesystem, which enforces 8.3 names and doesn't use Microsoft's patented dual-naming convention.

In early 2009, open-source luminary Larry Augustin urged the Linux community to "get the FAT out." While Tridgell's approach doesn't quite do this, it does appear to obviate Microsoft's patent claims.

This should make Linux users happy. Whether it will make Microsoft happy to see how trivial it is to code around its patent claims remains to be seen. That's the problem with launching nuclear marketing attacks against the legal integrity of open-source code: given enough eyeballs, all patent claims are shallow.

Follow me on Twitter @mjasay.

Rambus has asked the International Trade Commission to terminate an investigation of Nvidia relating to four patents as part of a November 2008 complaint.

Rambus provides high-speed memory interface technology, though in recent years the company has become better-known for intellectual property litigation practices. Rambus has sued many of the world's largest chip manufacturers.

Nvidia's David Shannon

(Credit: Nvidia)

The Los Altos, Calif.-based company conceded before the ITC that Nvidia products do not infringe on its four patents, and also asked for termination of several claims from a fifth patent in the ITC action, according to an Nvidia statement.

"We are pleased Rambus has recognized the weakness of these patents and claims," said David Shannon, Nvidia executive vice president and general counsel in a statement. "These withdrawals represent essentially half of the patents and one third of the claims asserted against us, and we look forward to addressing the remainder of the case."

The current ITC litigation originally included nine patents involving memory controllers related to graphics processors.

In June, Nvidia announced that the U.S. Patent and Trademark Office had rejected 41 claims, in seven patents, which Rambus had asserted in the ITC action against NVIDIA.

Rambus has a checkered track record on lawsuits. The European Commission launched antitrust investigations against Rambus in 2007, alleging intentional deceptive conduct in the context of the standard-setting process, citing its behavior as "patent ambush."

In January, a Delaware federal judge ruled that Rambus could not enforce patents against Micron Technology. Judge Sue L. Robinson, in the U.S. District Court in Delaware, ruled on January 9 that evidence "spoliation" occurred when Rambus allegedly destroyed important information related to the case that could be used against it. Robinson's decision rendered Rambus' patents unenforceable.

Advanced Micro Devices is "not concerned" over rival Intel's threat to pull out of a patent cross-licensing agreement between the two chipmakers, says an AMD Asia-Pacific executive, even as the Intel-issued deadline for supposed action looms.

According to Intel, GlobalFoundaries, AMD's manufacturing spinoff and a joint venture with the Abu Dhabi government, is not a subsidiary of AMD and cannot be accorded the same rights under the cross-licensing pact. Intel said it would terminate all rights and licenses under the agreement if AMD does not correct the "alleged breach" by the given deadline, which expires Saturday.

In an interview Friday with ZDNet Asia, Benjamin Williams, AMD's corporate vice president and Asia-Pacific general manager, dismissed Intel's actions as a media blitz and said the issue has since "died down."

"It's one of those areas that we weren't concerned with, (and) we obviously would not have done and structured the deal the way we had, thinking there was some challenge with the licensing and structure," he noted. "You're not hearing anything about (the issue) now; we're not concerned with it."

Adding that "the license goes both ways," Williams said the agreement also impacts, among others, Intel's Nehalem architecture and integrated memory controller. "What (Intel) neglected to (say) is that it's a cross-license agreement, not a one-way agreement."

AMD previously said Intel's claims were an attempt to distract the public from its antitrust battle with the European Commission. The EC this week ruled that Intel engaged in anticompetitive practices and fined the chipmaker 1.06 billion euros ($1.45 billion). Market observers, however, said the antitrust ruling is unlikely to dramatically alter the balance between the two companies.

Intel was unable to respond at press time.

Vivian Yeo of ZDNet Asia reported from Singapore.

Qualcomm and Broadcom announced Sunday that they have agreed to end patent litigation between the companies worldwide, with Qualcomm paying Broadcom $891 million, according to the announcement.

On Wednesday, Qualcomm delayed its second-quarter earnings statement, citing advanced settlement discussions with Broadcom.

Qualcomm made this statement Sunday: "Qualcomm and Broadcom today announced that they have entered into a settlement and multi-year patent agreement. The agreement will result in the dismissal with prejudice of all litigation between the companies, including all patent infringement claims in the International Trade Commission and U.S. District Court in Santa Ana, as well as the withdrawal by Broadcom of its complaints to the European Commission and the Korea Fair Trade Commission."

Qualcomm will pay Broadcom $891 million over a four-year period, according to the San Diego-based company. The terms of the agreement will not result in any change to Qualcomm's 3G (CDMA2000, WCDMA, and TD-SCDMA technologies) and 4G (LTE and WiMAX technologies) licensing revenue model, Qualcomm said.

The agreement stipulates, among other things, that Broadcom and Qualcomm agree not to assert patents against each other for their respective integrated circuit products and certain other products and services and Broadcom agrees not to assert its patents against Qualcomm's customers for Qualcomm's integrated circuit products incorporated into cellular products.

"We believe that this resolution is positive for both Qualcomm and Broadcom, our customers, our partners and the overall industry," Paul E. Jacobs, chairman and CEO of Qualcomm, and Scott A. McGregor, president and CEO of Broadcom, said in a joint statement.

"The settlement will allow us to direct our full attention and resources to continuing to innovate, improving our competitive position in this economic downturn, and growing demand for wireless products and services," Jacobs said.

The agreement ends longstanding litigation between the companies. For its part, Broadcom had argued in one case that Qualcomm was unfairly limiting competition by putting onerous conditions in its patent licensing agreements. Qualcomm licensed its chipset patents to other chip suppliers with the stipulation that they must limit sales of their products to mobile handset makers that also have Qualcomm patent licenses.

Broadcom had also asserted that the cloud of litigation hanging over it was a sticking point for prospective customers--and did win a judgment against Qualcomm in 2007. Qualcomm, however, had won court rulings of its own, having suits against it dismissed.

Updated on March 27 at 8:15 a.m. PST with comments from analyst.

On Thursday, Nvidia announced that it filed a countersuit against Intel in response to a filing by Intel last month alleging that a chipset license agreement does not extend to Intel's future-generation processors.

The action also seeks to terminate Intel's license to Nvidia's patent portfolio.

Last month, Intel alleged in a lawsuit that the 4-year-old chipset license agreement with Nvidia does not extend to Intel's future-generation processors with "integrated" memory controllers, such as its Nehalem processor.

"Nvidia did not initiate this legal dispute," said Jen-Hsun Huang, president and CEO of Nvidia, in a statement. "But we must defend ourselves...Intel's actions are intended to block us from making use of the very license rights that they agreed to provide."

Nvidia entered into the now-disputed agreement in 2004. In return, Intel took a license to Nvidia's portfolio of 3D, GPU, and other computing patents, according to the Santa Clara, Calif.-based graphics chipmaker. Nvidia said it had been attempting for more than a year to resolve the disagreement with Intel.

Nvidia said last month that Intel is claiming that the cross-license agreement doesn't apply to future bus interfaces, specifically the interface Intel uses to link the Nehalem processor to the system's memory, a new Intel feature.

Nvidia believes that the PC has become a GPU-based platform as much as a CPU-based platform and that Intel is trying to delay that inevitable shift by using the courts. (CPU stands for central processing unit; GPU stands for graphics processing unit.)

In a research note Friday Doug Freedman of Broadpoint AmTech said: "We are not surprised by NVDA's (Nvidia's) counter-suit against INTC (Intel) over chipset licensing of Nehalem's front side bus (FSB). We believe Intel's intent is not to prevent NVDA from using Nehalem FSB, but to use litigation as leverage for obtaining necessary IP/cooperation from NVDA (even possibly seeking IP in support of its non-PC SoC initiatives)." (IP stands for intellectual property; SoC stands for system-on-a-chip.)

For years, Microsoft has insisted that open-source vendors acknowledge that its patent portfolio is a precursor to interoperability discussions. On Monday, Microsoft shed that charade and announced an interoperability alliance with Red Hat for virtualization.

The deal includes several key components, all related to virtualization:

• Red Hat will validate Windows Server guests to be supported on Red Hat Enterprise virtualization technologies.
• Microsoft will validate Red Hat Enterprise Linux server guests to be supported on Windows Server Hyper-V and Microsoft Hyper-V Server.
• Once each company completes testing, customers with valid support agreements will receive coordinated technical support for running Windows Server operating systems virtualized on Red Hat Enterprise virtualization, and for running Red Hat Enterprise Linux virtualized on Windows Server Hyper-V and Microsoft Hyper-V Server.

Pretty straightforward, as interoperability should be, and driven by customer demand for Microsoft technologies running alongside Red Hat's, according to Mike Neil, general manager of Virtualization Strategy at Microsoft. The top Linux vendor partnered with Microsoft: this is a major win for customers.

Crucially, Red Hat's interoperability deal with Microsoft does not include any patent covenants, the ingredient that torpedoed Novell with the open-source community:

The agreements establish coordinated technical support for Microsoft and Red Hat's mutual customers using server virtualization, and the activities included in these agreements do not require the sharing of IP. Therefore, the agreements do not include any patent or open source licensing rights, and additionally contain no financial clauses, other than industry-standard certification/validation testing fees.

Red Hat has long argued that patent discussions only cloud true interoperability, which is best managed through open source and open standards.

While Red Hat has flirted with such interoperability before by joining with Microsoft in the somewhat toothless Vendor Interop Alliance, this is its first direct interoperability initiative with Microsoft.

What most people don't know is that Red Hat had been discussing interoperability initiatives with Microsoft for a year before Novell and Microsoft tied the knot, but Microsoft ultimately derailed the talks by trying to introduce a covenant not to sue over patents, similar to what it ended up negotiating with Novell. Red Hat rejected this unnecessary inclusion, left the bargaining table, and Microsoft connected with Novell to use interoperability as an excuse to attack open source.

Monday, Red Hat and Microsoft have together demonstrated that interoperability can exist independent of back-room dealings over patents. Microsoft has increasingly been forced to open its stance on patents by the European Commission, anyway, proving Red Hat's resolute stance against patents was the right one. But this announcement suggests that Microsoft is maturing in its views on how to interact with open-source vendors.

It also suggests that Red Hat is maturing in its realization that it must interoperate with the old world of proprietary software even as it attempts to forge a new one of open-source software. Red Hat has long depended upon proprietary software: Red Hat Enterprise Linux's success has derived from its support for Oracle and other proprietary vendors.

Both Red Hat and Microsoft on Monday lowered their guns long enough for customers to win. They did so without encumbering interoperability with patents, which will be critical to ensuring that Microsoft can lower its guard further to welcoming open-source solutions to the Windows fold as a full partner.

Follow me on Twitter at mjasay.

A U.S. federal judge on Tuesday postponed indefinitely the coordinated patent infringement cases filed by Rambus against a collection of rival memory chipmakers.

The cases were scheduled to go to trial later this month.

Judge Ronald M. Whyte of the U.S. District Court for the Northern District of California issued an order indefinitely postponing the long-running cases against Hynix Semiconductor, Micron Technology, Nanya Technology, and Samsung Electronics, pending appeals of earlier court decisions.

Shares of Los Altos, Calif.-based Rambus, which licenses technology for high-speed memory architectures, plunged 22 percent in after-hours trading, or $2, to $6.95.

The defendants had argued for the delay after Judge Sue L. Robinson, in the U.S. District Court in Delaware, ruled on January 9 that evidence "spoilation" occurred when Rambus allegedly destroyed important information related to the case that could be used against it. Robinson's decision rendered Rambus' patents unenforceable.

The lawsuits, which were filed in 2000 and scheduled to go to trial on February 17, allege that the defendants infringed Rambus patents in producing DDR DRAM--the most common type of memory in PCs today--as well as in making SDRAM and DDR2 DRAM. The vast majority of PCs and servers produced in the past several years use one of these types of memory, and variants of DDR are expected to be incorporated into PCs for the next several years.

The defendants had previously argued that Rambus' patents were invalid because the company failed to disclose that it held patents on memory technology while it was a member of a standards-setting organization that was developing SDRAM standards in the 1990s. Rambus claimed that the rules of that group didn't specifically require the company to disclose its patents and that it never proposed that the standard incorporate its technology.

In a statement, Micron general counsel Rod Lewis applauded the ruling. "We are pleased that Judge Whyte recognized that the Delaware Court's unenforceability ruling impacts the patents asserted by Rambus in the California matter, and that he stayed Rambus' patent case against Micron," Lewis said. "We believe that Judge Robinson's thorough decision will be upheld on appeal."

Rambus, which has argued that Robinson's ruling conflicted with an earlier ruling by Whyte that found Rambus had not destroyed evidence, expressed optimism that its case would be well received on appeal.

"While we are disappointed with the stay of the coordinated cases, it is our expectation that the conflicting opinions of the district courts regarding document spoilation will go up together on appeal," Tom Lavelle, Rambus general counsel, said in a statement.