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Useless Patent Wars – Motorola Awarded Unenforceable Injunction against Microsoft

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MoMo and MicrosoftEvery day I peruse the tech news on the interwebs to keep up with what’s going on.  There are usually a few interesting stories on some sort of technology development or new games coming out, but what I’ve found over the last year is that those types of stories have been dwarfed in number by news on the business side of technology.  Now I’m not saying that’s a bad thing – I’m both a nerd and a business guy so that intersection of topics definitely interests me.  But it’s the stories that accompany the ones about tech business dealings that make my head hurt.  And all of those stories are on tech patents and lawsuits.

There’s a certain extent to which a defense of patents and intellectual property is reasonable.  That’s the point of the patent system as it was designed – to defend inventors from someone else taking the idea and running with it for profit, protecting them from being victims of corporate theft and economies of scale.  And that works for the most part when it comes to tangible goods or the processes to manufacture said goods.  But trying to apply that same system to technology, namely software, unfortunately can become nothing short of a series of legal quagmires.  Patents can be awarded to very broad solutions and nebulous ideas that there’s no present method to develop, or that could possibly have multiple methods of execution.  Put those patents in the hands of patent trolls and watch them kick back, send their legal attack dogs, and either kill a dream for kicks or pick up royalties.  And in my personal, non-lawyer opinion, I can see how that could stifle and suppress innovation in startups and small firms, who simply can’t afford a potential patent lawsuit from a larger company with deeper pockets.  Something has to change.

It’s nothing new.  I know, as you all do, that this type of thing has been going on more and more as the mobile space has grown.  But that doesn’t preclude me from reading the news and cringing a little bit when i see some of the fallout.  Today was such a day with such stories that irked my nerdy ire.  Motorola Mobility, the broken-off mobile piece of the once whole Motorola, and who i will be referring to as “MoMo” for the rest of this, won an injunction against Microsoft in Germany.  The injunction is in the form of a sales ban covering Xbox 360 game consoles, the Windows 7 line of operating systems, Internet Explorer and Windows Media Player in Germany.  That means every Xbox 360 and every copy of Windows 7 would have to be taken off the shelves.  The reason? H.264 video.  For those not in the know, H.264 is a video codec that covers many aspects of HD video.  One of its claims to fame comes thanks to Blu-Ray players, which all have to be able to decode H.264 video streams.  Online video content delivery through Flash and sites like YouTube use H.264 to get it done too.

What MoMo sued for wasn’t actually for H.264 itself, but two patents that they hold for the delivery of H.264 video.  Their claim is that Microsoft never properly licensed said technologies, and have convinced a Mannheim Court in Germany of that as well.  But it’s not that simple. A United States court has banned MoMo from enforcing that injunction until they review the matter next week.  And in the meantime, Microsoft has gone ahead and moved their European software distribution center from Germany to the Netherlands to mitigate the action.  You see, earlier on Microsoft previously accused MoMo of abusing its FRAND obligations – providing licensing under fair, reasonable, and non-discriminatory terms to licensors as a standard setting entity.  According to Microsoft, those licensing fees from MoMo would come with a price tag in the neighborhood of $4 billion.  So in addition to the German court and US court, the European Commission could also look into this, as they’re already carrying out a probe on MoMo’s supposed “abuse of a dominant market position.”  This is the first step in what is sure to be a long and hugely drawn out process.

On another level, trying to ban Windows 7?  You’re telling me MoMo is 100% Mac and Linux in their enterprise setup?

But that wasn’t all for today.  Another report featured Nokia’s new patent assault against HTC, RIM and Viewsonic for infringement on 45 patents in their portfolio.  They’ve already been successful once in suing Apple into a licensing deal for the iPhone, but details on which 45 patents have yet to be released at the time of my writing this.  Now this one I can sort of understand.  It looks like they’re trying to mitigate some financial hits with some additional revenue streams until the Lumia becomes more widely popular.  So while this one didn’t strike a nerve as badly, it still made me shake my head a little.

It just seems to me that the undeniable amount of effort (not to mention cash money) funneled into patent assaults could be redirected into more product development.  There’s a lot of really basic things the mobile world has yet to figure out, and instead of coming up with technologies for things like more efficient batteries.  Put more effort into putting quality products into the hands of the consumers, not quality money into the hands of your lawyers.  Think about the good of the game.

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About tushar nene

  • http://www.lunch.com/JSMaresca-Reviews-1-1.html Dr. Joseph S. Maresca

    The inventor of a bicycle gets the patent and first priority internationally once the invention is disclosed and cast in the optimal mode of operation. A party who comes along and invents a 5 speed bike gets a patent on the enhancement only. An inventor who invents a 10 speed bike or a 30 speed bike also gets a patent.

    The important thing is that enhanced inventorship is rewarded and previous patent holders must be cited by the granting examiner or examining staff.

    Usually, some sort of licensing arrangement is worked out between the parties when an invention incorporates prior art. Herein lies the basis for litigation. You basically must convince a court that the new invention cannot operate without your idea incorporated in some shape or form.