Microsoft Leveraging iPod Patent? 487
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 $10/iPod, I imagine someone will be singing the appeal song.
Like IBM situationn (Score:3, Informative)
Facts are wrong (Score:5, Informative)
1. M$ 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
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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:When did this happen? (Score:3, Informative)
Microsoft doesn't hold the patent, they have an earlier patent filing but the patent has not been granted. Microsoft does not have the right to charge Apple a licence fee for each iPod sold.
Sky is wrong.
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]
Re:Facts are wrong (Score:5, Informative)
http://www.theregister.co.uk/2005/08/10/microsoft
Re:Business plan for success... (Score:1, Informative)
Whether microsoft have documentation showing that they thought of it much earlier is irrelevant, the idea was in the public domain with the release of the ipod before the patent was applied for.
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.
Re:Facts are wrong (Score:2, Informative)
Re:Business plan for success... (Score:4, Informative)
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.
Re:Business plan for success... (Score:4, Informative)
Portable MP3 player, pocket fit, displays name, artist, etc.
Plays music...
WTF?
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.
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."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.)
Re:Business plan for success... (Score:3, Informative)
Patents were created to encourage information disclosure by providing benefits to those who did. If you fail to submit a patent application and someone else comes up with the same idea later, you have no rights. You'd be able to hinder them from getting a patent granted, but that's about it.
Re:A Dangerous Game (Score:3, Informative)
Re:Business plan for success... (Score:2, Informative)
Not necessarily so with Lawyers. They typically bill in increments - usually 6 minutes (1/10th hour), but some billing in larger increments - 15 minutes, 30 minutes, a few crooks actually use whole hours.
So, Joe Lawyer makes five one minute phone calls (yes, I've seen it happen, and more than five). He just billed at least 30 minutes of work and possibly as much as 6 hours for those five minutes.
Unlike many other bill-for-time professions like consultants, Lawyers often bill far more than they actually work -- legally (read the retention contract if you hire a lawyer, it'll be in there, you signed it, you agreed to it, it's legal), and they usually have paralegals, admins, and clerks who do a lot of that extra non-billable stuff that other professionals spend their non-billable time doing. They do lose time to business development (i.e. Rain Making), but I don't really count the bulk of that as "work".
How do I know? I was a lawyer (okay, I guess I technically still am, but don't practice). I got disgusted with the industry and went into the less dishonest business of software development and then later management consulting, so I've played both billing games and watched others play both.
Personally, I can't agree with this posters assessment of many lawyers being "great" people. Very few laywers, in my opinion, are "great" people. Many start out as at least "good" people, and some even as "great" people, but you stay in the business long enough, you sell your soul so thoroughly that you lose whatever "greatness" you may have had.
The exception to that are the selfless souls who work for crap pay for a cause they believe in despite debilitating student loans. Those people, I think, qualify as "great", even if I don't believe in their cause.
Those that get the hell out of Dodge stand a chance at regaining their humanity as well, something I've been working on for ten years now.
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.
Re:Business plan for success... UPDATE (Score:3, Informative)
The rejection is a 102(e) "anticipation" over Microsoft's allowed application, which, like a 102(a) rejection referenced in my parent post, might be overcomed by a "131" declaration, and, in fact, the inventors appeared to have done just that ( including Steve Jobs, who signed his copy). The declarations were filed on April 11 2005. A final rejection was submitted on July 11 and mailed two days later. What is very puzzling, however, is the examiner did not mention the 131 affidavit at all, which he should have done, even if it was grossly ineffective to establish an earlier date of invention for whatever reason(s). I can only speculate that the declarations were not properly forwarded or timely scanned into the file wrapper database and that the examiner was unaware of them at the time the action was prepared. Certainly, if the applicant files an amendment/response after final rejection this will be pointed out.
BTW the evidence contained in the 131 declaration is a press release announcing the ipod on November 9, 2001. My knowledge of 131 practice is weak so I don't know if the press release is sufficient to legally establish that the iPod as announced, with all the features, actually existed. I certainly know that if the press release were being used to reject claims like here in some hypothetical patent application by, say, Microsoft that it wouldn't suffice; you'd have to show something with more details that actually show that the features were actually there and were not "just press release vapor". I'm sure that the iPod was public and that it did have all the features claimed, but that would need to be shown more concretely than a press release. In any event the 131 declaration should have been addressed in the final rejection.
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Re:Software? (Score:3, Informative)
Re:Legally speaking, a stroke of genius by MS (Score:3, Informative)
Not that will stop the hoards of RDF-weenies from claiming otherwise 8)