back to article Microsoft withdraws software silos from Germany in patent war

Microsoft is moving its European distribution centre out of Germany and into The Netherlands to protect itself from patent machinations in the German courts. The software giant is shifting its software logistics out of harm's way as it awaits decisions in disputes with Motorola Mobility in the ongoing patent wars. Microsoft had …

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Paris Hilton

Having warned that companies would resort to this soon, only to be mocked and downvoted, all I have to say is: "I told you so."

-d

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With apologies to George Lucas

The Patent Wars (2010 AD—2026 AD), also known as the Patent War and the Great Patent War, was the name given to the major galactic conflict fought between the two Galactic Republics (Microsoft, Apple) and the Confederacy of Independent Systems (Android, RIM, Linux). The war was named after the patent troopers utilized by the Republics against the battle droid forces of the CIS. These armies, the Grand Legal Army of the Republic and the Separatist Droid Legal Army, were two of the largest ever pitted against each other in galactic history, and the fighting between them rapidly spread to countless inhabited worlds.

Unbeknownst to most of those involved, the conflict was started and maintained by the Dark Lord of the iSith, Darth Stevious, whose ultimate goal was the transformation of the Apple Republic into the Galactic Empire with him as Emperor as well as the eradication of the Android Order through the Great Patent Purge.

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WTF?

Jurisdiction

> Redmond has asked a court in the US to stop any such enforcement due to the negative impact it would have on a legal battle between the two firms in Washington

How can someone ask a court in one jurisdiction to forbid a plaintive from enforcing a court order in another?

Surely if the German court say do X, then that governs what happens in Germany, it isn't anything to do with a US court.

How would a US court react to a German judge trying to set aside one of his rulings?

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Anonymous Coward

Re: Jurisdiction

By putting him on the nofly list, probably.

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Re: Jurisdiction

They are asking a US judge to make sure a German ruling does not apply to them on US soil.

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Holmes

Re: Jurisdiction

Whilst US desicions are not enforcable in Germany, it would affect Motorola operations in America - if a US judge says Motorola should bot proceed in Germany, it would put them in contempt of the US court and affect operations over there. It works both ways and the German judge could do the same thing, then it's up to the recipient to decide which market is the more valuable.

I've seen this kind of thing before, and to be fair the judges are wise old creatures and they normally seem to come up with cross-border decisions which make each of the participants eat a little humble pie. I can only hope this will be the case here.

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Windows

I wonder...

Well, first of all I welcome our new Microsoft distributing overlords to our small country of mills and cheese :-)

Seriously though; both Germany and the Netherlands honor European law. And as far as I know the way patents are dealt with is also setup on an European level. As such I have to wonder what the big advantage is (I'm pretty sure their lawyers have it all worked out, I'm just puzzled by it).

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Anonymous Coward

Re: I wonder...

US Lawyers generally seem to think only US law exists, and is applicable everywhere else in the world.

(would note US legislators seem to believe this from time to time as well)

The chances that they have checked the 4d chess game that is EU and National legislation ranges on the scale of little to none, and I have seen an ethicaly minded large multi-national fall into this trap, trying to be helpful to it's customers.

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Anonymous Coward

Re: I wonder...

European patent law isn't rationalised yet (thank god, as they want us to go the US *hand out patents like they're going out of fashion* style) so if Germany (who seem quite troll friendly) make one decision it only effects Germany, but if your distribution centre is in Germany then you can't distribute.

Or at least that's how it seems atm

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Re: I wonder...

One reason Microsoft are leaving Germany is due to Germany's bifurcated patent trials. In Germany, findings of infringement are made in a separate parallel trial from the investigation of the patent's validity. Each trial is run by a different judge and runs on a different timeline. The infringement trial is very quick, whilst the validity trial can drag on for a few years. This means that the infringement trial can result in an injunction and a couple of years later, the validity trial can decide that the patent was never valid in the first place and lift the injunction. However, the defendant must suffer a couple of years of injunction to get to the final decision on the patent's validity.

Due to this bifurcated trial system, a plaintiff with a clearly invalid patent can still get an injunction in Germany for a couple of years.

To my knowledge, Germany is the only country in the world that has this bifurcated system.

The German system is also flawed because it will not consider the anti-competitive behavior of Motorola (and others, such as Apple and perhaps Samsung) in getting their technology accepted by an industry standards committee by agreeing to license it on RAND terms but then not doing so. Relevant to this dispute, the H.264 patent pool offers more than 1,000 H.264-essential patents (from scores of companies) for less than 1/1000 of royalty that Motorola want for a single patent. Motorola's position is hardly "reasonable" in this instance. Apple, and I believe Samsung, have both taken similar ridiculous positions about how much royalty they should get for standards-essential patents for which they have previously made RAND commitments.

It's my understanding that the Netherlands courts will consider the anti-competitive nature of the royalty that Moto are demanding at the same time that they consider the issues of infringement and patent validity. I consider the Netherlands' approach to be very reasonable and intelligent because it resolves the entire dispute in a holistic manner. It makes perfect sense why Microsoft prefer to be in the Netherlands.

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Anonymous Coward

Re: I wonder...

EU Law!

Whats that then?

Theres no such thing, you see in the infinite wisdom of our masters, we have this system where all those MEPS Vote for an EU law, that law means diddly squat, then they come back to their native country and then we have to vote it in as real law. Unfortunately some countries just bend over backwards, others dont, which is why you can get some differences in EU law between the various members.

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Re: I wonder...

Arguably one of the most insightful software patent posts ever.

Thanks!

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Jurisdiction?

Safe in the Netherlands? Not really!

It's like comitting a federal crime in the US and ruin to another state for protection.

If Motorola wins in Germany, it's likely they can enforce it elsewhere. Besides, any monetary

demands from Germany will be automagically enforced in the Nethertlands. The only

different is the bailiffs are talking Dutch instead of German.

The hole idea with EU is that it's one marketplace. One set of rules. Maybe not today but if EU survives, it will be.

Take the Spanish fondleslab case Apple lost, it's now spreading north to France and then maybe all the way to the European Court.

//dan

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Anonymous Coward

Re: Jurisdiction?

its actually better than that, to put it in USA context, its like living in NY, breaking a law of UT in NY(not ilegal in NY) and being sent to UT for trial

but only if the various states signed up to do it, which most of them did in this case

but the EU its self doesnt have any law, it can only help enforce the laws that country signed up too and even then, that country could just tell them where to stick it. That is why they wanted this constitution signing a while back, but that essentially (potentially) removes all power from the state.

this is however slightly different, you can be stopped from selling your product here, or fined for doing so, this is more to do with the company getting pissed off, and is willing to spend millions moving to another country which is a huge sum of tax revenue gone and potentially employment as well, id be supprised if it goes ahead, companies do this all the time to get better deals....

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Sauce for the goose

It's sauce for the gander too.

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Linux

It isn't about jurisdiction

This is about threatening to remove jobs from your voters.

The issue is software, which has very little intrinsic value (a CD and a paper box perhaps).

I doubt this will endear MS to the Germans.

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