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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? More

Microsoft Leveraging iPod Patent?

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  • Legally speaking, a stroke of genius by MS (Score:3, Insightful)

    by Anonymous Coward on Tuesday August 16, 2005 @09:05AM (#13329867)
    Using common sense, a disgusting move far from surprising from a company who's main innovative power seems to be located in the Legal department rather than in R&D. What's next, a patent for "creating software"?

  • Business plan for success... (Score:5, Funny)

    by borawjm ( 747876 ) on Tuesday August 16, 2005 @09:05AM (#13329870)
    1. Steal Apple's technology 2. File a patent before they can 3. Profit!

    • Re:Business plan for success... (Score:4, Interesting)

      by GreyPoopon ( 411036 ) <gpoopon@gm[ ].com ['ail' in gap]> on Tuesday August 16, 2005 @09:15AM (#13329960)
      1. Steal Apple's technology 2. File a patent before they can 3. Profit!

      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???!?!?

        • Short answer, yes. Long answer ... (Score:5, Informative)

          by SgtChaireBourne ( 457691 ) on Tuesday August 16, 2005 @09:47AM (#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:Short answer, yes. Long answer ... (Score:4, Insightful)

            by ivan256 ( 17499 ) * on Tuesday August 16, 2005 @11:11AM (#13330951)
            The short answer is, yes, the patent is invalid and will probably be over turned. [...] Thus they are hobbling Apple for a bit and presumably generating a bit of fear, uncertainty and doubt as to iPod.

            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.

            • Re:Short answer, yes. Long answer ... (Score:5, Insightful)

              by Bun ( 34387 ) on Tuesday August 16, 2005 @12:11PM (#13331506)
              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.

              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."
               
              ...Microsoft wants something specific from Apple and is using this as a lever.
      • The United States has a "first-to-invent" patent system. Documentation that can establish what the inventor knew and when he knew it is used to determine the true inventor. Internal Apple documentation regarding the design and development of the iPod could be used for this.

        European nations tend to have a "first-to-file" system, where rights go to whoever gets the paperwork done, regardless of who actually did the inventing.

        Plus, if Robert Heinlein's mere description of the water bed in Stranger In a S

        • But what if Microsoft thad really invented it first and simply hadn't gotten their designs out or weren't going to release hardware themselves? In that case, they would be right to try to get the patent before Apple screws them and their partners with an iPod patent.

      • Re:Business plan for success... (Score:4, Informative)

        by PortHaven ( 242123 ) on Tuesday August 16, 2005 @10:18AM (#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?

    • Re:Business plan for success... (Score:5, Insightful)

      by JonTurner ( 178845 ) on Tuesday August 16, 2005 @09:16AM (#13329970) Journal
      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. 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. It's still a hassle, though and in the end the only ones who will benefit are the lawyers.

      • Re:Business plan for success... (Score:5, Funny)

        by lucabrasi999 ( 585141 ) on Tuesday August 16, 2005 @09:24AM (#13330032) Journal
        the only ones who will benefit are the lawyers.

        The older I get, the more I realize that I picked the wrong career.

      • Re:Business plan for success... (Score:5, Insightful)

        by Erwos ( 553607 ) on Tuesday August 16, 2005 @09:25AM (#13330049)
        "Our patent system (flawed as it may be) works on rewarding patent to the first to invent, not the first to register for patent."

        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

      • Re:Business plan for success... (Score:5, Informative)

        by harlows_monkeys ( 106428 ) on Tuesday August 16, 2005 @10:17AM (#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.

  • ftfa (Score:3, Funny)

    by Evro ( 18923 ) <evandhoffman@ g m a i l.com> on Tuesday August 16, 2005 @09:05AM (#13329871) Homepage Journal
    David Kaefer, Microsoft's director of intellectual property licensing, said it was open to letting other firms patent its innovations.

    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)

    by Feminist-Mom ( 816033 ) <feminist DOT mom AT gmail DOT com> on Tuesday August 16, 2005 @09:05AM (#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.)

  • Apple won't pay a dime to MS over this patent. (Score:5, Insightful)

    by FatRatBastard ( 7583 ) on Tuesday August 16, 2005 @09:05AM (#13329876) Homepage
    Two words: Prior Art. MS filed two months after the debut of the iPod. Apple got caught with their pants down by filing late, but I doubt seriously MS will be able to collect a dime on the patents.
    • but I doubt seriously MS will be able to collect a dime on the patents.
       
      That's not the strategy. MS wants to tie [insert competitor here] into a lengthy expensive legal fight.
      • Now that I can (somewhat) believe. If MS decides to persue this in order to distract Apple then a lot of lawyers are going to make a lot of money. Should be fun to watch.

        The upside to all of this that everyone seems to be missing is that now Apple can't go around suing everyone who makes an mp3 player whose controls are anything slightly iPod'ish.
    • Lets hope not. I think with all the work MS is "trying" to do to improve their image, this would completely thrash any sense of being human they have accumulated.

      I think the first step in patent reform is for companies to start challenging patents that already exist. Not their pathetic plan for challenging new patents. And on another note, it's hard to blame the USPO since they're highly understaffed and underfunded all while having more patents submitted than ever before. i guess that would make the fi

    • You Win!!! (Score:4, Funny)

      by Anonymous Coward on Tuesday August 16, 2005 @09:19AM (#13329991)
      FPAP - First Prior Art Post!

      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!
    • Prior Art

      I distinctly remember a patent case from other field, that would suggest there is no prior art in American legal sense of the idea in this case.

      (I don't remember exact facts, can't find any sources, so just correct the information, if you know better.)

      Some Farmaceutical Consortium developed a drug. It was based on some Indian (as in India) herb, or synthesised based on active factors from those herbs. The herb/plant/whatever and its medical properties were known in India for thousands of years, yet
    • Does this then mean that apple just gets the patent overturned or that they themselves will get the new patent.

      In the first case: Nice, in the second case: who cares.

  • If there's any intelligence... (Score:3, Funny)

    by heinousjay ( 683506 ) on Tuesday August 16, 2005 @09:05AM (#13329878) Journal
    If there's any intelligence in the court system, this will be reversed. Guess Apple is screwed.
  • Doesn't the fact that iPods were shipping over six months before the patent was filed by the MS employee mean the application doesn't mean much? Every time one of these patent fights comes up I get just more and more confused.
  • The US Patent Office has ruled that Microsoft has the right to charge competitors a licence fee for each iPod sold.
    I know there was a denial of a patent but when did the Patent Office say Apple needs to pay a license fee? Sounds like crappy reporting using speculation rather than facts.
  • Seems like Microsoft can use that patent against any company that produces an mp3 player.

    It's obscene how companies are allowed to patent the obvious. Has anyone patented buttered bread yet? If not, I'll be filing today.

    • Re:Is it just iPod? (Score:5, Funny)

      by djdavetrouble ( 442175 ) on Tuesday August 16, 2005 @09:48AM (#13330217) Homepage
      Has anyone patented buttered bread yet?

      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.

  • Sky News... (Score:5, Insightful)

    by gowen ( 141411 ) <gwowen@gmail.com> on Tuesday August 16, 2005 @09:06AM (#13329894) Homepage Journal
    ... is shit. The $10 figure is almost certainly a coke-fuelled[0] invention of some lazy-ass semi-literate tech-journalist needing desperately to fill space, who's noticed that such a patent exists (probably read it on some other tech news site, but felt the story needed spicing up). Until MS or Apple actually make a statement on it, this is just moronic conjecture.

    [0] I mean Coca-Cola, obviously.

  • Facts are wrong (Score:5, Informative)

    by gorbachev ( 512743 ) on Tuesday August 16, 2005 @09:07AM (#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

  • I'm confused.. (Score:3, Interesting)

    by Marc2k ( 221814 ) on Tuesday August 16, 2005 @09:08AM (#13329903) Homepage Journal
    1.) I'm confused at how this works. Apple introduced the iPod in 2001, filed for a patent in July of 2002, and was beat by Microsoft for the patent by two months, according to this article. But if the technology utilized in the iPod is infringing on the patent filed for in April/May of 2002, how can the iPod itself constitute prior art, seeing as it was already shipping. How does that work?

    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?
    • in response to the number of iPods sold:

      Im unsure of the total, but last quarter they sold 6,155,000 alone.
    • Comment removed based on user account deletion

      • Re:I'm confused.. (Score:3, Insightful)

        by Marc2k ( 221814 )
        Agreed that would make a little too much sense. I realize that it's "first to invent", but with a IP/Legal team like Microsoft's, I'd imagine that when they want a patent, they have a filing in the USPTO's mailbox by 3:45pm the same day. Thus, I can't imagine any court believing that TWO companies, both very much aware of patent law, sat on the same invention/patent filing, one of them already having a product using said covered invention already invented and shipping.

        I mean really, with this logic, I could

      • Change the law (Score:3, Insightful)

        by robertjw ( 728654 )
        You are correct, but it definitely seems screwed up to me. Personally, I think if you can't get around to filing for the patent before someone else can make a product and successfully market it you don't deserve a patent.

        What Microsoft did is clearly just an opportunistic exploitation of the patent system. They didn't think their idea was worth patenting until someone else made money off a similar idea. The patent system was, in theory, designed to protect inventors from having their ideas stolen. I

  • Rolling over? (Score:3, Interesting)

    by DoubleDangerClub ( 855480 ) on Tuesday August 16, 2005 @09:08AM (#13329906) Homepage
    Apple won't just give in to this easily. At the same moment, Microsoft is sore that they haven't been able to break iTunes success, or get into the portable audio market as well as the iPod has. They've known about this patent issue for a while, I'm sure, they just had no drive to take this to the limit. Anyhow, I'm sure people can agree that this isn't a done and done deal. How many people think Apple would simply pay the fees? or that this has to do with the impending Apple x86 battle with windows?

  • Prior Art... (Score:2, Interesting)

    by droptop ( 558616 )
    ...I think I saw it on BoingBoing; Here in America, it's "Invented First, not Filed First".
  • If Xerox had patented this [wikipedia.org].
    • They would probably have licensed it. More interestingly, what would have happened if Apple had patented using dirty regions to only redraw part of the screen. I very much doubt that they would have licensed them to MS or MIT (for X) and so last year would have been the first time anyone other than Apple would have been able to produce a relatively modern GUI. This is my favourite example to cite when talking to legislators about software patents.

  • MS could also refuse to license (Score:3, Interesting)

    by ehack ( 115197 ) on Tuesday August 16, 2005 @09:12AM (#13329930) Journal
    AFAIK licensing a patent is not compulsory. They could demand compensation for ALL of the ipods already sold (before the patent was granted hehehehe) and then forbid Apple from making more ipods.

    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)

      by ThosLives ( 686517 ) on Tuesday August 16, 2005 @09:22AM (#13330018) Journal
      Essentially, lawyers have replaced soldiers.
      Let's see how your lawyers fare when soldiers use guns on them.

      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.

      • Force is not quite what you think, I believe. The most powerful force is widely regarded to be compound interest (Einstein himself so said). Rule of law is up there as well. They both supercede, and subsume, soldiers with guns. Economies command armies. Lawyers command armies. Soldiers with guns die as pawns.

  • patent reform (Score:3, Insightful)

    by colmore ( 56499 ) on Tuesday August 16, 2005 @09:12AM (#13329934) Journal
    Lots needs to be done to reform patent law, but it seems like an obvious first step would be, if devices "based" on your patent have been out for years and you still don't manufacture anything similar, the patent is null and void.

    Patents were designed to protect actual products, not simply stick flags in the ground and say "mine."

  • Microsoft, Apple- who cares? (Score:4, Insightful)

    by Enrique1218 ( 603187 ) on Tuesday August 16, 2005 @09:12AM (#13329937) Journal
    Apple is a pretty large company with a strong legal department. I am sure if there is a loophole or prior art, they will find it. If not, Apple has billions in the bank. I am not losing any sleep though I cringe at the thought of giving Microsoft money. Ah, who I am kidding- there is no way to use a computer without paying something to those guys.

  • Defensive? I think not (Score:3, Interesting)

    by Rick and Roll ( 672077 ) on Tuesday August 16, 2005 @09:12AM (#13329939)
    There are a lot of Microsoft apologists that will come out and say that Microsoft only uses their patents defensively, as if there's nothing wrong with what they're doing.

    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.

  • Dupe? (Score:2)

    by imroy ( 755 )
    Isn't this a dupe of a previous story [slashdot.org]?

    • Not Really (Score:3, Insightful)

      by b4k4_teh_1337 ( 902224 )
      Not really. Its more of an expansion as the previous article was about the fact that microsoft had the patents. This article focuses on the "fact" that microsoft is trying to use the patents to squeeze money out of apple. However, as I haven't seen this article anywhere else yet, and i've never heard of SKYNews I am skeptical as to weather this is fact yet or not. I wouldn't be suprised if it was though
  • Maybe neither of them should get a patent...notice how there's already a gazillion MP3 players floating around?

  • A Dangerous Game (Score:4, Insightful)

    by ergo98 ( 9391 ) on Tuesday August 16, 2005 @09:14AM (#13329955) Homepage Journal
    I develop with Microsoft software. My desktops are all Windows desktops (though I run Linux in virtual sessions). I target the Microsoft environment because, in my analysis and for the industry I target, it is the best choice. I've even been accused on Slashdot of being a Microsoft astroturfer countless times for shooting down misguided and misinformed anti-"M$" FUD. While I've been a bit put off by some of Microsoft's prior actions, I could always see their position. I have never owned a Mac, and I don't own an iPod.

    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)

      by argent ( 18001 ) <(peter) (at) (slashdot.2006.taronga.com)> on Tuesday August 16, 2005 @09:29AM (#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:A Dangerous Game (Score:3, Informative)

        by zippthorne ( 748122 )
        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?

  • The Microsoft - Apple Wars (Score:5, Interesting)

    by indole ( 177514 ) <fluxist.gmail@com> on Tuesday August 16, 2005 @09:14AM (#13329956) Homepage

    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.

  • Has anyone else actually READ the patents? (Score:5, Informative)

    by angrist ( 787928 ) on Tuesday August 16, 2005 @09:15AM (#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*

  • The Prior-Art-O-Matic (Score:3, Funny)

    by mattyohe ( 517995 ) <matt.yoheNO@SPAMgmail.com> on Tuesday August 16, 2005 @09:20AM (#13330000)
    From the website: http://thesurrealist.co.uk/priorart.cgi [thesurrealist.co.uk]

    "It's a series of randomly-generated product ideas! It raises questions about the nature of prior art in patenting issues, has some inspiring ideas, and is occasionally amusing!"

    Design #1384685891

    It's a shower head that jumps like a frog and displays pornography.
  • ...is exactly this: "The iPod was launched in November 2001 but Apple waited until July 2002 to file for a patent; Microsoft snuck in to license some of the technology the previous May.".

    you can base your patent on someone elses product... and this is supposed to cultivate innovation? nope.

    (ianal, but in europe if it's shown publicly it's not patentable anymore - so you can not patent things that you already launched nor you can patent things that your competitor already launched)

  • iPwned (Score:4, Interesting)

    by mikeophile ( 647318 ) on Tuesday August 16, 2005 @09:22AM (#13330024)
    The iPod was launched in November 2001 but Apple waited until July 2002 to file for a patent; Microsoft snuck in to license some of the technology the previous May.

    Doesn't previous art count for anything anymore?
  • Does it really matter if they collect or not? I mean, yes it does but my point is the fact that they went after the patent is part and parcel of their philosophy. This, in my opinion, is as bad or worse than domain squatting. All you "M$ isn't so bad" folks can eat a little crow. If you think M$ is anything short of Evil Incarnate, you have serious mental issues.

  • Does anybody understand patent system? (Score:5, Interesting)

    by panurge ( 573432 ) on Tuesday August 16, 2005 @09:36AM (#13330128)
    As I at least hold a US patent, perhaps I should try and explain that it is based on date of INVENTION, folks. Microsoft is (apparently) claiming to have invented something before Apple. To prove this, they will need engineer's notes and concepts, drawings etc. which provably originate from an invention date.

    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)

    by kbastuba ( 789384 ) on Tuesday August 16, 2005 @10:35AM (#13330652)
    I'm a patent law student, so take this for what it's worth. This is not legal advice and doesn't represent a perfect understanding of the law, if such a thing even exists.

    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.

  • Comment removed (Score:4, Informative)

    by account_deleted ( 4530225 ) on Tuesday August 16, 2005 @02:21PM (#13332510)
    Comment removed based on user account deletion

  • Where's the Infringement? (Score:3, Insightful)

    by Geek Yid ( 798534 ) on Tuesday August 16, 2005 @02:42PM (#13332746) Homepage

    We have all been getting wrapped up in hysteria. The USPTO's examiner rejected Apple's application, supposedly as not patentable over a Microsoft patent application, or so it appears.

    I used to be a patent examiner (1999-2000; left in large part due to the fact that I didn't feel the job could be done properly with the resources and time available). I've read, as many of you have, the respective applications, notably the claims. Keep in mind that only claims can be infringed upon. Patents are granted solely on an applications claims, not on any other stuff described in the application. While the full disclosure in application M can be used to reject application A's claims, A only infringes on M if it is claimed by M.

    The claims of the M$ application [uspto.gov] (PDF) [pat2pdf.org] are not infringed upon, IMHO, by the Apple application [uspto.gov] (PDF) [pat2pdf.org]. M$ claims a way of generating a playlist, whereas Apple claims a method of interfacing wherein a user directly picks items to be played. Even though M$ claims -- in a dependent claim that their system might be included in a media player, that still does not mean Apple is infringing on the M$ patent, should the M$ patent stand. It only means that Apple cannot patent its device over that which M$ disclosed in its application.

    Further, IMHO, independent claim 1 of the Apple application specifically cites selecting items "through a rotational action with respect to said user device" -- something which I cannot find in the M$ application. Therefore, there is no reasonable case for infringement. The only question is whether that 'rotational' step alone makes Apple's app patentable over the M$ app (again, still assuming we don't even bother to knock out the M$ app), or whether Apple will need to narrow its claims a bit first.

    I am not worried about the iPod infringing on the M$ app/patent in question. However, iTunes' creation of Smart Playlists appear to be a much closer match to what M$ discloses. That is where Apple should be worried, unless they can show a different, non-infringing algorithm for auto-creating their Smart Playlists.

  • Microsoft's Terms (Score:3, Funny)

    by Nom du Keyboard ( 633989 ) on Tuesday August 16, 2005 @02:51PM (#13332838)
    Maybe in addition to the $10 fee, MS will require Apple to bundle Internet Explorer with every iPod sold.

  • stupidity (Score:4, Insightful)

    by cahiha ( 873942 ) on Tuesday August 16, 2005 @05:38PM (#13334495)
    The US Patent Office has ruled that Microsoft has the right to charge competitors a licence fee for each iPod sold.

    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.

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