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].
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.
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.
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).
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.
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.
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.'"
The paper describes how commonly cited "genius" inventions didn't come out of nowhere and are instead based on research and build-up of knowledge by multiple independent groups of inventors. Yet patents are often granted to one party as if they came up with something truly remarkable and original all on their own. This kills innovation and further research because the other parties cannot continue to improve on the work after a vital patent has been granted to someone.
This paper doesn't really advocate for total abolition, but that seems to me like an attempt at not coming across as too radical.
Good reference, thanks. I would add, for those that haven't read the Boldrin/Levine link yet, it only starts off with the myth of the lone inventor, but ultimately tackles the modern pharmaceutical industry as well, which is probably the more modern intellectual monopoly defense.
"It is often argued that the best case for patents is in the pharmaceutical industry. The fixed cost of innovation is large, with estimates of the average cost of bringing a single new drug to market as high as $800 million in current dollars... Indeed, according to industry surveys, the only industry in which patents are thought to play an important role in bringing new products to market is the pharmaceutical industry...
The pharmaceutical industry is a complicated beast to vivisect, which can be approached from many contradictory angles and viewpoints. We will stick to ours, narrow that it may be, and ask - how strong is the case for patents in pharmaceuticals? Is there substantial evidence that without patents we would not have the medicines we have, or at least we would have a lot fewer and worse medicines? Would the industry shut down and talent move to some other, more rewarding, enterprise if patents on drugs were more or less abolished, that is, if the world became like Switzerland until 1978 or Italy until a year later?"
Oh boy, that paper is a huge exercise in setting up a strawman and knocking it down. Lemley has done some good work, but this is not it.
1. He goes on and on about "patent theory", and it's worlds apart from how patent systems work in practice. His feeble connection is that practice is based on theory.
2. He cites a paper that directly contradict what he's saying.
2. a) He cites a paper to ostensibly support his theory that patent offices are pro-individual, but the reference actually says, without paraphrasing, "The patent laws do very little to prompt this view." It actually concludes that the lone-inventor rhetoric "has done little to stave off the increasingly anti-individual-inventor changes in substantive patent law."
2. b) He perpetuates the same "Watt stopped Steam" myth that Boldrin and Levine make. And to support this, he cites the Turner/Selgin paper that asserts precisely the opposite!
3. Further, regarding steam, he insinuates patent law didn't work as expected because Watt's patents promoted steam research by forcing workarounds. In fact, innovation through forced workaround has long been a known (though possibly post-facto) rationalization of the patent system.
4. All the examples he gives of "multiple independent invention" are actually examples of multiple individuals independently inventing different inventions. And he further proves it by saying that many of those inventors secured patents for their own inventions as well!
5. All the other parties working on the "genius" inventions did contribute to overall knowledge, but a) their work was not wasted since they did things differently, exploring the problem space further, and frequently got their own patents, and b) those inventions that ended up being remembered as genius were actually the commercially more successful ones, typically because they were either technically superior or their inventors were sharper businessmen.
6. He implies accidental inventions are less deserving of protection, completely omitting that those inventions all happened in labs or research environments by people who were actively experimenting.
Throughout this paper, Lemley consistently makes two mistakes:
* He conflates the broad “idea” of something with the specific implementation that makes that something work;
* He conflates popular narrative about patents with the patent system;
And based on these two, he enumerates flaws in popular narrative where most major inventions were not invented only by those that got all the credit.
And then he completely fails to show how this flawed narrative has anything to do with the patent system, which, by his very own examples, does reward individual and incremental contributions.
My problem with that book is that the authors start it with a lie [1], and changed to different lies when being called out on it [2]. They also made some misrepresentations of how software and open source works.
Just from that, it was difficult for me to take anything else they say at face value. To top it off, I just came across a reference [3] suggesting Boldrin and Levine's analysis of the dye market was inaccurate, and that patents actually played a big role in German dominance in the market.
The one thing I've realized from reading a lot of studies, anyone that makes a broad claim that IP if "all good" or "all bad" is wrong.
Actually in medicine we have both the good and bad of patents. For any drug to be brought to market in the U.S. there is, by necessity, a long and expensive process to ensure a drug does more benefit than harm. This process can cost millions of dollars but producing the formula + manufacturing is often not nearly as expensive. Hence, a patent, because of the legal framework for which these inventions are conceived within, granting a monopoly for a short period of time is the only thing that promotes or gives companys an incentive to continue on with FDA approval.
This, by the way, is no means or excuse for some of the shenanigans drug manufacturers take part in. It merely is one illustration of why a patent system should exist.
In medicine, patents are a government-granted benefit to inventors that sort of counteracts the government-imposed penalty of having to go through FDA approval. There's a nice symmetry here.
If we look at industries with less regulation, like software, the necessity for a patent system is a lot less clear.
The parent post ask for "research proving patents do more good than harm", not for a theoretical problem which patents might do some good, regardless of the potential harm it might do at the same time.
The big elephant in the room problem with patents on medicine, is that government trade the life of some poor people for the incentive that some people might be more willing to invest in medicine research with patents rather than without it. We don't even ask if there is an alternative ways for the government to intervene, and use an 200 year old approach which creates value by excluding people who can't afford to pay to get access to medicine.
When people builds nuclear reactors, we ask what the potential good vs the potential harm there is. If we don't people die, which is why there is regulations. With patents, we have chosen the path of causing deaths, and we don't even ask if the price tag is worth it.
It would be interesting to see a breakdown of who pays for what in the development of a needed drug. For instance, how big are the tax credits for R&D? How much of the testing is subsidised or outright paid for by taxpayers?
And of course: what proportion of drug development is to replace high earning drugs for which the patent protection is expiring. (ie "solved problems").
I am not convinced that the drug industry needs patent protection. I have a gnawing suspicion that we have reached a point where it might be a better idea to just remove patents and see where the chips fall.
Patent is what keeps research institutions running. The only reason MIT gets so much every year is because they make great research and companies are willing to do joint research with professors. And for smaller, less competitive research institutions, patents help finance department. Grants are great but on top of grants departments can do better with revenue coming from patents. You'd be surprised how many a department can make on top of grants by just having patents. The IP director at my institution came to my class and talked to us. One postdoc made an impressive method on some neuroscience stuff and his invention would have been worth hundreds of millions to him and to the department. He was only able to get US patent not international patent only because he published his work to a journal.
Patent has good and bad. We need to balance the two. And believe it or not, when you face a lot of competitors, if your invention can drive them out, you'd want to patent that. This is just how business works. If patent is bad because everything should be open, then military inventions should be open too. It might sound extreme, but patent is the weapon businessman uses.
Did someone say "research" and "patents" in the same sentence? :-)
I was going to rifle through my vast collection of references to studies about patents, but I just came across a pretty good review of the research of economics of patents:
"Recent Research on the Economics of Patents" - Bronwyn H. Hall, Dietmar Harhoff (Google for PDF)
I'm still going through it, but it will give you an idea of what the current research looks like.
Here's the deal: Whether patents promote innovation, and whether their benefits outweigh the harms, are extremely difficult questions to answer. I mean, how do you even measure "innovation"? You could say by "counting patents", but that's simply a circular argument! Not to mention the complaints that many patents are low quality, or that companies like Twitter are regularly called "innovative".
So in absence of any direct indicators, what the vast majority of studies do is roughly this:
1. Pick a few metrics that act as proxies for whatever they measure (innovation, patent quality, economic benefit, economic harm, productivity, R&D efforts, etc.);
2. Gather data from which these metrics can be gleaned, typically constrained along many dimensions such as time, industry sectors, sources, etc. to make gathering it feasible. (Sometimes this step is actually optional and author outright just run simulations on what they think are "reasonable" approximations of data. Sometimes they don't even do that. In the paper above, they're referred to as "Theoretical Evidence");
3. Present a hypothesis;
4. Construct a model;
5. And test the model to see if their hypotheses stand up to the data or not.
And at each step they provide varying degrees of explanations of their methodologies, assumptions, controls, potential confounding factors, flaws in their data, and so on.
As you can imagine, it is rather difficult to make solid, generalizable conclusions. For one, the metrics may be pretty poor approximations. Or the model may be poor. Or the hypothesis may be flawed - an unfortunate problem with many studies is that they do not take into account changes in the legal environment (such as the changes wrought by the AIA and decisions like Medimmune v. Genentech) so their very premises are flawed.
Fortunately, many studies are all about finding flaws in other previous studies, so there's some semblance of balance.
Really, go through the paper above and the papers it cites, and you'll see why it's downright impossible to make broad assertions like "patents promote innovation" or "patents harm innovation".
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.
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.
Yes.
The clock starting at filing change was due to submarine patents (people would keep things in process for many years, and slowly amend them, until when they finally issued, they covered whatever was cool at the time. There are a few famous examples).
Realistically, the life of the average patent was not extended by this change, since patent apps, on average, were taking three years to approve.
I mentioned he was campaigning against software patents in the past. But his pieces are not critical about patents but very critical about Google. Maybe it is more a bias against Google than towards patents.
However the case, he is not a reliable or independent source in the smartphone IP wars.
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.
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.
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.
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.
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.
>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.
"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."
"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.
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.
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.
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...
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.
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).
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...