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Media (Apple) Media Microsoft Patents

Microsoft Leveraging iPod Patent? 487

Posted by CmdrTaco
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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Microsoft Leveraging iPod Patent?

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  • Like IBM situationn (Score:3, Informative)

    by Feminist-Mom (816033) <feminist.mom@gmaDALIil.com minus painter> on Tuesday August 16, 2005 @10:05AM (#13329874)
    There was a similar situation between AT&T and IBM in the late 80's regarding fiber optics technology. In that case the ruling was in favor of AT&T (which would be Apple in this case.)
  • Facts are wrong (Score:5, Informative)

    by gorbachev (512743) on Tuesday August 16, 2005 @10:07AM (#13329900) Homepage
    Here's what the facts really are http://wizbangblog.com/archives/006750.php [wizbangblog.com]

    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 /., reporting on the story have the facts wrong
  • by squiggleslash (241428) on Tuesday August 16, 2005 @10:14AM (#13329952) Homepage Journal
    They didn't. They ruled that Microsoft has the right to charge (anyone) a license fee for each (device that contains technology covered by the patent) sold (or even to prevent others from selling devices containing the technologies concerned at all.) They did this by saying the magic words "Patent granted!"

    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 fee. They've merely said that Microsoft has the right to charge one. It's up to Microsoft, at this point, if Apple needs to pay a license fee.

  • by angrist (787928) on Tuesday August 16, 2005 @10:15AM (#13329967)
    The last time this story came up I dug up the actual patents in question. (Don't have the links handy atm) IANAL but from what I could gather, the patents don't overlap.

    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 ... although knowing MS the execution would end up like Clippy *shudders*
  • by HTTP Error 403 403.9 (628865) on Tuesday August 16, 2005 @10:27AM (#13330060)
    Wrong!

    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)

    by argent (18001) <peter.slashdot@2006@taronga@com> on Tuesday August 16, 2005 @10:29AM (#13330077) Homepage Journal
    In case you missed it, you don't need to turn in your Windows licenses yet. This is all speculation, and it's not even Microsoft basher speculation for the most part, it just seems to be journos trying to get a scoop by making stuff up.

    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)

    by cosmic_gravy (902874) on Tuesday August 16, 2005 @10:30AM (#13330082)
    The Register seems to agree that this story has been misreported.

    http://www.theregister.co.uk/2005/08/10/microsoft_ apple_patent/ [theregister.co.uk]
  • by Anonymous Coward on Tuesday August 16, 2005 @10:39AM (#13330156)
    You cannot apply for a patent on any thing that is already in the public domain, e.g. in a release product.

    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.
  • by SgtChaireBourne (457691) on Tuesday August 16, 2005 @10:47AM (#13330212) Homepage
    The short answer is, yes, the patent is invalid and will probably be over turned.

    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)

    by inode_buddha (576844) on Tuesday August 16, 2005 @10:57AM (#13330310) Journal
    Groklaw had a story [groklaw.net] about this the other day. I'm willing to bet that *they* got the facts right.
  • by Electroly (708000) on Tuesday August 16, 2005 @11:08AM (#13330397)
    Apple licensed Xerox's IP by giving them a substantial amount of Apple stock, actually. They didn't "steal" anything.
  • by harlows_monkeys (106428) on Tuesday August 16, 2005 @11:17AM (#13330483) Homepage
    Except that it doesn't work that way. Our patent system (flawed as it may be) works on rewarding patent to the first to invent, not the first to register for patent.

    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

    ...but now you are comparing Apple's invention date with Microsoft's filing date. We don't do that under first-to-invent. We compare Apple's invention date and Microsoft's invention date.

    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.

  • by PortHaven (242123) on Tuesday August 16, 2005 @11:18AM (#13330492) Homepage
    Question, even considering the iPod as prior art...but I have a frickin Rio (you know before the iPod) the original MP3 player manufacturer. Um, it seems to meet all those mentioned items:

    Portable MP3 player, pocket fit, displays name, artist, etc.

    Plays music...

    WTF?
  • You're an idiot. (Score:5, Informative)

    by piecewise (169377) on Tuesday August 16, 2005 @11:21AM (#13330521) Journal
    You're an idiot and your comment is overrated. Learn why below.

    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.
  • by amliebsch (724858) on Tuesday August 16, 2005 @11:28AM (#13330590) Journal
    I assume if two people, organisations or companies directly compete to make a device, then patent law applies and the first person to have patented the device wins.

    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):

    In determining priority of invention under this subsection, there shall be considered not only the respective dates of conception and reduction to practice of the invention, but also the reasonable diligence of one who was first to conceive and last to reduce to practice, from a time prior to conception by the other.
    These invention priority cases can get very messy, however, and the U.S. is probably soon going to change to "first to file."
  • by kidlinux (2550) <duke&spacebox,net> on Tuesday August 16, 2005 @12:09PM (#13330921) Homepage
    "Apple failed to secure a patent before Microsoft did."

    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.)
  • by prefect42 (141309) on Tuesday August 16, 2005 @12:13PM (#13330969)
    No. If you thought of the idea before, but didn't patent it, then it would be a trade secret. You have a choice, either you put the information in the public domain by filing for a patent application (thus gaining protection) or you keep your information to yourself and have no such protection.

    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)

    by zippthorne (748122) on Tuesday August 16, 2005 @12:51PM (#13331335) Journal
    Seems to me that would be counter to how the iPods work these days.. as far as I can tell, they are shipped sans filesystem, and formatted when you install the thing. If you plug it into a mac, I assume it uses whatever filesystem those things use. If it's shipping without a filesystem and using windows calls to format the thing under windows, why would apple have any reason to pay for a FAT license?
  • by theAtomicFireball (532233) on Tuesday August 16, 2005 @12:58PM (#13331403)
    and as anyone who bills there time knows, a billed hour is more than an hour of work

    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.
  • by mavenguy (126559) on Tuesday August 16, 2005 @01:03PM (#13331440)
    Not so fast.

    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.
  • by mavenguy (126559) on Tuesday August 16, 2005 @02:35PM (#13332162)
    OK, I just couldn't let this go, so I did a little digging and I think I found the Apple application, it's 10/282,861, and the this [uspto.gov] is the link to the image file wrapper, which has all of the prosecution history.

    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.
  • Forget royalties.. (Score:4, Informative)

    by jcr (53032) <jcr@NOsPAM.mac.com> on Tuesday August 16, 2005 @03:21PM (#13332510) Journal
    Didn't anybody notice that Apple and MS had a patent cross-license agreement in effect when the iPod shipped?

    Nothing to see here, guys. Really.

    -jcr

  • by jcr (53032) <jcr@NOsPAM.mac.com> on Tuesday August 16, 2005 @03:26PM (#13332534) Journal
    I just checked... The cross-license agreement was for five years, and it started in 1997. The iPod shipped in 2001. Whatever the upshot of MS's race to the patent office, Apple will not be paying royalties on the iPod.

    -jcr

  • Re:Software? (Score:3, Informative)

    by jocknerd (29758) on Tuesday August 16, 2005 @04:00PM (#13332946)
    This patent is in regards to the menuing software in the iPod.
  • by rodgerd (402) on Tuesday August 16, 2005 @10:05PM (#13335913) Homepage
    Apple sued, IIRC, emachines for selling PCs that they thought looked too much like the early iMacs... here we are [theapplecollection.com]. As it happens, I think it's a not unreasonable trademark/branding beef for Apple to have, but Apple can hardly whine when they're on the recieving end of IP lawsuits, given how happy they are to hand them out when it suits.

    Not that will stop the hoards of RDF-weenies from claiming otherwise 8)

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