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Microsoft Leveraging iPod Patent?
Posted by
CmdrTaco
on Tue Aug 16, 2005 09:02 AM
from the i'll-believe-it-when-i-see-it dept.
from the i'll-believe-it-when-i-see-it dept.
willie3204 was one of several readers who noticed this story about Microsoft cashing in on the iPod Patent that they apparently beat Apple to. Since this song looks to be played to the tune of $10/iPod, I imagine someone will be singing the appeal song.
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Legally speaking, a stroke of genius by MS (Score:3, Insightful)
Business plan for success... (Score:5, Funny)
Re:Business plan for success... (Score:4, Interesting)
Erm, what am I missing here? Apple introduced the iPod in November, 2001. MS applied for the patent in May, 2002. If they are claiming that th iPod is in violation of their patent, wouldn't the fact that the iPod was released prior to the filing date at least be considered prior art???!?!?
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Re:Business plan for success... (Score:4, Informative)
Portable MP3 player, pocket fit, displays name, artist, etc.
Plays music...
WTF?
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Re:Business plan for success... (Score:5, Insightful)
Umm, no. They released the iPod in November, 2001. Although they were late applying for their patent, and therefore can no longer receive a patent on their technology, the fact that they have a product that was on the market before Microsoft even filed for their patent would automatically invalidate Microsoft's patent. Wouldn't it? We call it prior art, don't we?
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Re:Business plan for success... (Score:5, Informative)
If Apple's date of publication were more than one year prior to Microsoft's filing date, then it would constitute a "statutory bar" under 35 USC 102 [cornell.edu], more specifically paragraph (b). However, since the presumed disclosure date is less than one year prior to the filing date, then paragraph (a) must be applied. And the relevant event for the applicant is not the application filing date, but, rather, the "invention" by the applicant.
Since applicants don't provide the date of invention as part of the application, for the purposes of patent application prosecution, the filing date is presumed to be the date of invention. If the applicant wants to overcome a rejection based on 102(a) prior art (also applies if the prior art is used in an obviousness rejection under 35 USC 103) then the applicant must establish this via an oath or declaration under 37 CFR 1.131 (sorry, too lazy to get the link) to "swear behind" the date of the prior art. In the case where the prior art is a US Patent which claims "the same" invention, however, then this procedure cannot be used; the priority of invention must be determined by a vastly more complex procedure called interference, where the two parties battle it out to determine priority of invention.
And that last sentence raises a question in my mind... if the Microsoft allowed application's claims are ones that Apple could make then why can't Apple copy Microsoft's claims and provoke an interference? Without seeing both files it's hard to judge what's technically and legally going on here, although PC Mag's story notes the Microsoft application as 20030221541 (series 10 application No 158,674 for those brave enough to look at the image file wrapper). I haven't found a clear source for the identity of Apple's application. The Register's story [theregister.co.uk] has some links, but the speculated Apple application doesn't appear to be the one being discussed.
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Re:Business plan for success... (Score:4, Insightful)
Shouldn't it be though? All these companies want to get this patent crap going in Europe and they still haven't "fixed" ours. The Patent Office MUST do a better job in not making it the job of the courts to fix their bad patents. It costs a lot of money for companies to secure what they innovated. Patents are becoming more of a hinderance to innovation and the consumer than a way for innovators to get a period of profit.
This really needs to be fixed.
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Re:Business plan for success... (Score:5, Informative)
As mentioned above, the USA runs on a first to invent system, not a first to file.
In Canada, it's first to file. Everywhere else, Apple is screwed (and so is Microsoft) because of public disclosure (North America is the only place with a 1 year grace period for patenting after public disclosure.)
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Re:Business plan for success... (Score:4, Insightful)
To me, what this more likely means is that anyone can produce products with an ipod-like interface.
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Short answer, yes. Long answer ... (Score:5, Informative)
The long answer is that it takes a shit load of money (usually millions [ffii.org]) and time to overturn even obviously bad patents. Thus they are hobbling Apple for a bit and presumably generating a bit of fear, uncertainty and doubt as to iPod. It's basically like a nuisance lawsuit to tie up resources. Everyone, especially MS, knows that MS can't compete on technical mertis so it's been doing everything possible to ensure that no one else can either.
Take this as a warning as to what will happen if MS is able to force software patents into Europe and no longer has to play nice on either side of the Atlantic.
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Re:Short answer, yes. Long answer ... (Score:4, Insightful)
More likely, Apple will pull some patent they've been hanging onto that some newish version of Windows violates. Both sides will realize that both patents will probably be overturned at great expense, and a cross licensing agreement will make this all go away. This will happen without the average iPod user ever even hearing about it, much less having it influence their purchasing decision.
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Re:Short answer, yes. Long answer ... (Score:5, Insightful)
Or...
From the article:
"Microsoft and Apple have previously licensed their respective patent portfolios to one another and we maintain a good working relationship with Apple."
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Re:Business plan for success... (Score:5, Insightful)
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Re:Business plan for success... (Score:5, Funny)
The older I get, the more I realize that I picked the wrong career.
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Re:Business plan for success... (Score:5, Insightful)
First to _invent_, not to implement. If Microsoft can produce documentation that they thought of this idea well in advance of Apple's iPod release, they can still retain the patent.
-Erwos
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Re:Business plan for success... (Score:5, Informative)
Right so far...
Since Apple can demonstrate that they were shipping product well before MSFT submitted their patent applications, this should be an easy appeal for Apple to win
Microsoft's invention date is before Apple's ship date, so it is not as obvious as you think it is that Apple has an easy appeal here.
The key fact, that pretty much all the news stories have skipped, is that it doesn't look like the iPod actually infringes Microsoft's patent. Rather, Apple's attempt to broadly patent more than they've actually done (which is normal...you try to patent as much around what you did as you can) got wide enough to hit Microsoft patents, so Apple simply didn't get all the patents they wanted.
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Re:Business plan for success... (Score:4, Informative)
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You're an idiot. (Score:5, Informative)
Yes, it's true: Steve Jobs said in a sentence: "great artists steal." Unfortunately for you, his entire statement explained why he felt that saying was actually wrong and that people at Apple have been careful not to steal technology or ideas.
Don't take part of a statement and twist its intentions around to suit your poor argument.
And yes - Apple invented the first commercial GUI and did so with rights from PARC and with a number of PARC engineers that went to work for Apple.
And of course, the patent has nothing to do with putting products in white boxes. Thre are real innovations behind the iPod that distinguish it from other MP3 players.
Lastly, none of this matters. America is not a "first to file" country, but rather a "first to invent" country. Since the iPod was marketed and public before Microsoft's application, it will likely be rejected by the appeals process because of prior art violations.
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ftfa (Score:3, Funny)
Great news source. There's a world of difference between "let other firms patent its inventions" and "let other firms license its patents."
Like IBM situationn (Score:3, Informative)
Apple won't pay a dime to MS over this patent. (Score:5, Insightful)
You Win!!! (Score:4, Funny)
Congratulations! You're the first Slashbot to write 'Prior Art' in this patent discussion! Good job winning the race, and good luck with the free karma!
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If there's any intelligence... (Score:3, Funny)
Sky News... (Score:5, Insightful)
[0] I mean Coca-Cola, obviously.
Facts are wrong (Score:5, Informative)
1. M$ doesn't HAVE the patent yet, as it hasn't been granted yet
2. M$ is unlikely to get the patent, as their is prior art
3. Media outlets, incl. apparently
Re:Facts are wrong (Score:4, Insightful)
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Re:Facts are wrong (Score:4, Insightful)
As opposed to slashdot, the FAQ for which clearly states that the editors make no effort to check the veracity of articles that they post, and that has been fooled on a number of occasions in the past.
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Re:Facts are wrong (Score:5, Informative)
http://www.theregister.co.uk/2005/08/10/microsoft
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I'm confused.. (Score:3, Interesting)
2.) The last sentence of the article states, So far, 21 million iPods have been sold worldwide, 18 million in the last year alone. Is THAT true? were there only 3 million iPods in the hands of consumers prior to January, 2004?
Rolling over? (Score:3, Interesting)
MS could also refuse to license (Score:3, Interesting)
Apple deserves this - they have been a strong supporter of the patent system - now they will see that what it really boils down to is that the more money you have for lawyers the more money you can extract from ny corporation with less money for lawyers. Essentially, lawyers have replaced soldiers.
Re:MS could also refuse to license (Score:5, Insightful)
Lawyers only work when everyone agrees to abide by the lawers and judges. People generally only agree to this because some "soldiers" somewhere are willing to enforce what the lawyers and judges say. I only care about lawyers and judges because of the guys with guns behind them.
People in the US in particular seem to forget that the only real way to enforce anything is with force.
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GP is not trolling (Score:4, Insightful)
Justice is merely force that is applied in the right places (ie, the force is justified). The grandparent is not a troll. All law depends on enforcement. A lawyer can make a case and a judge can sentence a criminal to jail, but that's all just empty words unless someone is willing to use force to make the sentence happen.
That's not to say that all force is justice, and I don't believe the grandparent said that either.
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patent reform (Score:3, Insightful)
Patents were designed to protect actual products, not simply stick flags in the ground and say "mine."
Microsoft, Apple- who cares? (Score:4, Insightful)
Defensive? I think not (Score:3, Interesting)
Well, that hasn't been what they've been saying lately. They've been talking about licensing fees. Guess how people collect on those?
Right now I believe they already charge Apple licensing fees for the FAT file system. I guess they're making their IP division directly generate revenue.
Please boycott Microsoft products. They eventually use anything they make for consumers against consumers.
A Dangerous Game (Score:4, Insightful)
Yet this action absolutely disgusts me.
Microsoft seriously risks turning off, and scaring away, the people who have the influence and persuasive power and technical know-how to maintain Microsoft's position. Hearing some scumbag talking about "licensing their innovation", when he's really talking about a deplorable abuse of the patent system, really makes one ponder what's the next (we already got hints from the sad reality that Microsoft considered buying Claria). Previously it was Microsoft the Evil to the conspiracy theorists and the people with an axe to grind. The title is becoming more real to the mainstream.
Re:A Dangerous Game (Score:4, Informative)
Though Microsoft has recently created 11th hour license fees on the FAT file system, and I'm sure Apple's paying those on every iPod sold.
Anyway, this looks like a better story. [wizbangblog.com]
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The Microsoft - Apple Wars (Score:5, Interesting)
My own theory is that Apple declared War on Microsoft when they announced their intention to release an x86 version of OS X. The OS is the powerhouse of Apple's future success. This could be a very serious competitor to Microsoft Windows. Really, who isn't interested in trying a polished functional alternative to XP? Now Apple's opening salvoes have been returned by Microsoft pulling this licensing garbage.
Really. This is all out war now.
Then the next logical steps... (Score:5, Insightful)
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Has anyone else actually READ the patents? (Score:5, Informative)
The Apple patent covers all the basic iPod functionality, scroll wheel, music, video (forward thinking I suppose), etc etc.
The Microsoft patent is for something called "Auto DJ". Basically it's software that allows you to pick several songs as positive seeds, and at least one as a negative seed, and based on your choices it will generate a playlist from your music library. Sounds like a DAMN good idea
Re:Has anyone else actually READ the patents? (Score:5, Funny)
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iPwned (Score:4, Interesting)
Doesn't previous art count for anything anymore?
Does anybody understand patent system? (Score:5, Interesting)
Of course, the cost of forgery is immeasurably less than the cost of losing a really big patent fight: as Lord MacAulay noted many years ago, in India there were even companies in Bombay that obligingly kept stacks of paper and ink for different years up to about 40 years back, along with official government seals, so they could do you anything you wanted. This is the major weakness of the US system, i.e. the incentive to fraud is disproportionate to the risk. The weakness of the European system (first to file) is of a thief stealing an invention and filing it first.
The inability or unwillingness of the EC to understand this is at the root of the problem with software patents shows that the last people to leave in charge of technology are civil servants and lawyers.
Apple can win this, but it'll take money and time (Score:5, Interesting)
As the applications stand, Apple will likely be issued a rejection by the USPTO based on MS's prior application. Assuming Apple can demonstrate that they had invented this product first (shown through sales, and preferrably dated design drawings, schematics and such), they should overcome the USPTO rejection. At that point the USPTO would invalidate MS's patent.
As a bunch of people above have pointed out though, this only works in the US. In Europe and essentially the rest of the world, where a first-to-file system is used, Apple probably won't be so lucky. If MS beat apple to filing in any first-to-file countries, they should retain the patent even though Apple actually developed a product using the patented technology first. There are pros and cons to botht he first-to-file and first-to-invent system, but that's an argument for another time/
It'll be interesting to see if MS will license the patent to Apple, or if they'll force apple to change the interface. Neither one makes MS look particularly good, but this really could let MS get a foothold in the MP3 player market, taking the interface everyone loves so much and building it into a player of their own.
The moral of the story: patent your ideas before marketing them to the public.
Forget royalties.. (Score:4, Informative)
Nothing to see here, guys. Really.
-jcr
stupidity (Score:4, Insightful)
The USPTO doesn't rule about whether companies have the right to charge, beyond allowing a patent.
Also, talking about a "patenting the iPod" does make sense. Neither Apple nor Microsoft invented portable MP3 players or even disk-based MP3 players. The patent in question seems to be about a particular feature of iPods.
Finally, given Apple's and Microsoft's cross-licensing agreements and close business ties, I also find it unlikely that any money is going to flow. Apple and Microsoft aren't enemies anymore, if they have ever been, and Microsoft doesn't want to see Apple disappear.
Re:When did this happen? (Score:3, Informative)
Sky's interpretation is a little more specific, but is nonetheless accurate. Your interpretation of Sky's interpretation, however, is flawed. The Patent Office has not said Apple needs to pay a license
Re:Is it just iPod? (Score:5, Funny)
No, but I have several butter related patents pending.
1. The Butter Pen. Put your standard stick of butter in and draw the butter on to your toast/pancakes/waffles/etc. The butter pen automatically maintains the butter at the perfect temperature for spreading. the butter.
2. The Butter Powered Clock. Harnessing the internal power of butter, just feed it a new stick of butter every sunday and this clock will keep running. Plus as an added bonus your room will smell nice and butttery.
3. Popcorn Irrigation System. Ever notice how the popcorn on top gets all the butter and by the time you reach the bottom, you are gnawing on dry butterless popcorn? The Popcorn Irrigation System solves that problem once and for all by equally distributing the butter to the entire batch. Using a system of pressurized tubes and nozzles along with liquid butter, each kernel is misted equally with delicious butter.
4. Butter Rifle. For long distance buttering hobbyists. How tight is your spread?
I better not spill all the beans, these inventions are really pushing the limits of butter technology to the next phase. You can see how exciting the field still is though.
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Re:Question for a patent-knowledgable person (Score:5, Informative)
Nope, in the U.S. only, the first person to have invented the device wins, regardless of who filed first.
But what happens if two people design something similar with no knowledge of the others progress and a patent is filed by one before the other?
The case is going to hinge on documentary evidence as to who completed work on the invention first. From 35 USC 102(g)(1):
These invention priority cases can get very messy, however, and the U.S. is probably soon going to change to "first to file."Parent