12.04.08

Patents Roundup: Microsoft Employs Patent Hawks, Google’s Chrome Sued, Ambush Denounced and More

Posted in FOSS, Google, Microsoft, Patents at 11:20 am by Roy Schestowitz

WE OPEN UP with this interesting report about Microsoft employing a “Patent Hawk” and bemoaning “inside jobs”.

Patent consultant Gary Odom, who blogs and does business as “Patent Hawk,” used to help Microsoft defend itself against patent lawsuits. But in August, Odom slapped his former client with a patent lawsuit of his own. On his blog, Odom took a quick break from denouncing patent reform to announce his new project, in an understated post titled “Tool Groups.”

Odom gamely admitted that Microsoft had been his client for years. “They had every opportunity for friendly discussion,” he wrote.

New documents filed in the case reveal much more about Odom’s relationship with his client-turned-target. Not only did Gary Odom work for both Microsoft and one of its outside law firms over a period of several years—he actually signed contracts in which he agreed not to file his own patent or IP lawsuits, and agreed to disclose his own patent activity.

Some older information can be found here.

Today’s bigger news though is Google’s pseudopen-source Web browser having Google sued. Google’s cash reserves probably make it an attractive target for such a lawsuit and there are some initial details surfacing (no news reports we could find).

Google’s “Chrome Browser” violates a patent, Aloft Media claims in Federal Court. Google announced the launch of its Chrome Browser on Sept. 1. Aloft claims it patented its “Network browser window with adjacent identifier selector interface for strong Web content” in March 2007.

There is some more information here and here [hat tip: Digital Majority]

Ambush and Standards

We frequently warn about the use of OOXML and it’s news stories like this one which serve as a reminder of the reasons.

A federal appeals court here ruled Monday that a California trial judge went too far when he stripped chip maker Qualcomm Inc. ( QCOM) of all legal rights to two video patents as a consequence of engaging in misconduct.

[...]

On Monday, the U.S. Court of Appeals for the Federal Circuit agreed with the trial judge that Qualcomm should have disclosed its patents to the working group. But the appeals court said the judge should not have stripped Qualcomm of all of its rights to the two patents.

Broadcom proudly uses this as an opportunity to say that Qualcomm engages in misconduct.

Broadcom Corporation (Nasdaq: BRCM), a global leader in semiconductors for wired and wireless communications, announced that the U.S. Court of Appeals for the Federal Circuit today upheld a decision by a federal judge in San Diego that Qualcomm violated its duty to disclose its patents to a standards body and that, as a result, the patents are unenforceable against products practicing the standard at issue.

There is some similar report about Rambus, whose story we told some days ago.

Under participant agreements, however, disclosure was required to help ensure “a simple royalty free baseline profile.” And, under Rambus, even non-explicit disclosure requirements can create a duty to disclose patent rights during standard setting discussions.

Because the patentee intentionally failed to disclose its patents, the court agreed that the patents were unenforceable under the equitable doctrine of implied waiver. However, the court limited the scope of the waiver only to products that were compliant with the new (H.264) standard.

The FSFE has a good new article that touches on the issue of standards and patents, which ought to be seen as contradictory.

Software patents have been a hugely controversial debate, with lines of battle drawn primarily between large corporations holding large patent portfolios and engaged in multiple cross-licensing deals, and the Have-Nots, entrepeneurs, small and medium enterprises, and software users from the student using GNU/Linux all the way to institutional users in governments.

A new roadmap report for F/OSS (mentioned hours ago in the links) touches on this issue of patents as well.

There’s 78 pages of the report, and it goes into some very sensible public policy recommendations (ban software patents etc) along with ideas for education and corporate governance.

Over at ECT, which tends to deliver some pro-patents articles, the coverage of Bilski agrees with the assessment that software patents have been weakened. It’s being backed only by quoting.

Moreover, the court indicated that “[p]urported transformations or manipulations simply of public or private legal obligations or relationships, business risks, or other such abstractions cannot meet the test, because they are not physical objects or substances, and they are not representative of physical objects or substances.”

Glyn Moody meanwhile reviews some literature and explains how the nation of commons applies to patent, in the form of a cautionary lesson.

Regular readers of this blog will know that I am not a fan of the term “intellectual property”, and that I prefer the more technically correct term “intellectual monopolies”. Despite that, I strongly recommend a new book from someone who not only approves of the term “intellectual property”, but of its fundamental ideas.

Intellectual monopolies are rarely here to help, unless one is a lawyer. Any patent for that matter carries with it a burden that may involve ethical issues, but that’s a subject that we’ve already explored over the weekend. █

“Intellectual property is the next software.”

–Nathan Myhrvold, Microsoft patent troll

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