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back to article Judge halts spread of zombie Nortel patents to Texas in Google trial

Google has won a victory in its battle against patent troll Rockstar, with a US District Court judge having denied Rockstar's request to try the case in the troll-friendly Eastern District of Texas, rather than in California. Google, which is headquartered in Mountain View, California, filed suit against Rockstar in December and …

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Bronze badge
FAIL

@Rockstar

<Nelson>HA! HA!</Nelson>

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Re: @Rockstar

I'd actually like to have a finger-pointing Nelson to replace the fail icon. It would convey my (and others') feeling of schadenfreude so much better.

How about it?

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g e
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Re: @Rockstar

It'd serve wonderfully for much Oracle-related freude of the schaden variety, also

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Anonymous Coward

I personally think the judge should go a little farther. Require Rockstar and Mobilestar provide proof of their claims. If they fail to provide it, then when they filed their complaint, they lied to the court. In the complaint and pleading stage, the court must assume everything is true. This would pave the way for Google to call into question the claims Rockstar have made and the court to dismiss the case with prejudice.

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Anonymous Coward

"Require Rockstar and Mobilestar provide proof of their claims"

There isn't much doubt that some of the patent claims are going to stick. There is a very strong portfolio here - including a lot from Microsoft who have hardly ever lost a patent enforcement action.

It is not exactly a secret that The Borg have built some substantial businesses like Android by actively copying technology from Microsoft, Apple, Nokia, Oracle, etc. and the time to pay the piper is fast approaching!

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Florian? Is that you?

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Anonymous Coward

While some of the patents would hold-up, Rockstar needs to prove it. It is common practice that an attorney would use the complaint and pick some weak points in it to persuade the court that the lawsuit lacks merit. In this case, those weak points would be the Rockstar business model, their location and their witness locations. Once you get their case crumbling, it is far easier to get the lawsuit dismissed and to persuade the judge that there is serious doubt of any accuracy of future information that Rockstar provides to the court. Google should go a little further and push the issue of the claims of Rockstar and get sanctions against the Rockstar attorney. Rockstar will need to find a new set of lawyers as the current set are fighting for their ability to practice law.

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Microsoft don't do that many patent enforcement cases compared to some companies, so presumably the reason they hardly ever lose is because they pick their fights carefully. That doesn't mean that another company that buys some patents from Microsoft is guaranteed to win any fight they start.

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Roo
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Let me fix that for you:

"It is not exactly a secret that The Borg have built some substantial businesses like Android by actively copying technology in the same way that Microsoft, Apple, Nokia, Oracle, etc. have copied and re-sold lots of BSD code."

All those corps would be a lot poorer without the BSD code & tech they copied lock stock and barrel, consequently not one of those organisations have the moral high ground when it comes to copying other people's hard work. In Oracle's case their entire empire was built on stuff that IBM invented and in Microsoft's case built their empire with a licensed a CP/M clone.

If the IP police were honest with themselves and lived by what they bleat they wouldn't be using the Internet full stop.

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Anonymous Coward

"in the same way that Microsoft, Apple, Nokia, Oracle, etc. have copied and re-sold lots of BSD code.""

Apple reuse parts of Open BSD - so what? The license lets them.

Not aware of Nokia or Oracle doing so. Examples for both please?

Microsoft licenced Xenix from AT&T.

All completely different from Google actively copying patented technology from other companies and refusing to license it.

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Silver badge

Like 'prior art', proof of infringement is generally terribly understood (which I blame on lawyers and their ability to assign different meanings to different words, even in the same context, document, paragraph or sentence).

The key is in the 'accusation' part of 'accusation of infringement'. You can accuse the shit out of someone and the burden of responsibility to establish otherwise lies with the accused. A patent does not give you 'ownership' of an idea, it gives you the right to accuse someone of infringing on ideas you own the patent to. The accuser gets to fire the first volley and the accused must demonstrate why those accusations are invalid.

Those demonstrations are where 'prior art' not in the USPTO library, within the patent officers 'expert knowledge' of their assigned industry or common knowledge come in. All the dumb shit you see people do like outlining an idea on a website or published in journals not on the USPTO reading list is worthless for the awarding of a patent, but can be priceless for an accused infringer if they can prove publication date and that the source and/or author aren't gaming the system by spitballing ideas.

If the accused can demonstrate those things a patent can be invalidated. (Incidentally, if one of those sources is used to invalidate another patent it's worthless to the original inventor as they've made the idea public domain by publishing it in public (again, another clue hidden right in the term :) I just thought I would point out that US law makes no provisions for your idea saving someone else scads of money, unless it's patented of course :)

But if you're willing to go through the expense, and willing to travel to Texas, you can accuse companies of infringement until your war chest is depleted or you kill yourself or join a monastery because you've realized how worthless your life is and how your dear mother could have lived a few years longer if your parents hadn't wasted their money sending you to law troll school and paid for her to have better medical insurance.

Making infringement accusations isn't illegal (in and of itself)*, just expensive and annoying. It's up to the judge or jury to determine if the accusation is valid.

Interestingly, a zealous DA, or an elected one running for reelection, might argue that the companies had conspired to structure legal motions and obfuscate ownership of property in a way designed to subvert laws away from their intended purpose. Which is illegal.

*Making false accusations is illegal, but proving the difference between false and incorrect is really, really difficult.

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Zombie Lawsuits

Personally, I'm waiting for the day a Courageous judge cites one of thise companies for Contempt of Court for filing a bogus lawsuit and hits them with a Huge Fine.

Tailor the Amount of the fine and the reasoning behind it to the Financial resources of the Parent Company. i.e., How Much Financial Pain the company needs to feel to make the Fine an effective deterrent to such future activity.

In this case, it would take At Least a Billion Dollar fine to draw even a Drop of "Financial Blood" from Apple.

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Paris Hilton

Pea for brain

B&N?

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Anonymous Coward

So if they have copied so much, how come they have had to buy the patents off a defunct company to be used against them. Most of those patents could equally be used against Microsoft, Apple and Nokia?

This is about buying up patents as a conglomerate, setting up a separate non practising entity specifically to try to harm the opposition.

If you think this is a morally valid business practice then you are either naive or a patent lawyer.

It is this exact practice that harms the whole premise of patents. A royalty reward for your effort, research and development in a truly new and innovative product or system is,imho, legitimate. The act of buying up a load of patents just so you can make your competitor get distracted and waste a load of their money isn't.

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@AC

Not that I disagree with you, but I'm curious as to why you think you get to determine what an appropriate use of private property is. A patent is private property, make no mistake about that.

The trade and sale of patents has been part of their design since day one. Just like licensing, cross licensing (sharing), selective enforcement and good ole fashion market manipulation and obstructionism have been. Preventing someone else from doing something isn't 'cheating', that's business. In fact, that's all business is: A system where one party builds obstacles and another party works out ways to bypass or remove those obstacles. Having a good idea, or being 'smart', is having a good idea or being smart, that isn't business, and never has been. It's going into business without a good understanding of the rules that causes most businesses to fail.

But as I said, it's not that I disagree with you, but your conflating issues and things like you're talking about will do great harm to a patent system that works well, if it doesn't include software. Software is where the patent system falls down, and it should never have been allowed inclusion in the system.

If you eliminate all the other factors (as lawyers are wont to do) there's still no escaping the fact that the patent system has never seen abuse like this, was never designed for abuse like this, and can never be adjusted to address abuse like this without damaging the majority of other, non software, users of the system.

You don't modify any system to address the needs of the few if that system is being used properly by those it was designed to serve, as is the case with the patent system. You simply exclude the abusive elements and give them their own system to work within. A system that suits their needs and where what's abuse elsewhere isn't that way there.

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@Roo

Perhaps you can tell me what BSD is for and who is allowed to use it. Just you? Just your chosen band of OSS evangelists? Or anyone who follows the rules, including Apple? You do know much of BSD used by Apple is a commercial product, which Apple licensed? You do know that using some elements of FreeBSD has meant, in accordance with the rules they publish and maintain the core of OSX, Darwin, as an open source project/ repository and that it is available to the world? The same as they made WebKit available to the world. Remind me not to buy any of your work product from you. You seem to think anyone who buys a license to use something on an ongoing basis, if they didn't invent it, should find their right to use relinquished (and if not just what is your complaint?)

As for Google and Rockstar, contributors to this thread are forgetting a few key facts:

1) Google also competed for the Nortel patents the Rockstar consortium purchased. They lost.

2) The Rockstar consortium proposed the risk of losing the patents was great enough that all interested parties were better off biding in them as a consortium, a consortium Google were invited to join, but they turned down the offer. My heart bleeds for them.

3) Google claim they are anti software patents, but at the same time as making these claims I didn't notice them abandoning their own software patents for Adwords and page ranking through link analysis: the very software patents their business was built on and that meant Yahoo had to abandon the Internet advertising lead they once held to Google. Oh of course, Yahoo could have just ignored Google's software patents and competed with an Adwords clone. After all, listen to what Google say now to client device users and doing so is absolutely fine and dandy. The simple reality is Google are fucking hypocrites playing to the gallery where they know the gallery isn't interested in *their* software patents because they cover server side tech. By all means, Google, be against software patents, just don't be hypocritical while you are making the claim. Google's attitude is and always has been, "What is mine, is mine and what is yours is my own."

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the exceptions can hurt

>including a lot from Microsoft who have hardly ever lost a patent enforcement action.

They have lost a few times fairly big in different IP disputes brought against them though.

Burst.com claims that Microsoft stole Burst's patented technology for delivering high speed streaming sound and video content on the internet. Microsoft settled with the company for $60 million

Eolas and University of California, which accused Microsoft of using some of its software patents in their web browser, won $521 million in court.

Microsoft must pay i4i $290m for infringements of patents by Word. Microsoft's appeal ultimately failed.

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Re: @AC

> "If you eliminate all the other factors (as lawyers are wont to do) there's still no escaping the fact that the patent system has never seen abuse like this"

When America joined WW1 they did so without any effective aircraft because the Wright brothers had patented manned flight, and developing the airplane was tied up in litigation.

Meanwhile, on the other side of the pond production runs for single types of fighter aircraft outstripped the production of every single thing with wings in the by orders of magnitude (there were ~5500 Sopwith Camels built alone FFS!)

This disaster was mitigated by being able to buy British and French planes off of their factories. If that disaster didn't encourage reform of the patent system though, don't get your hopes up that there is going to be any reform now!

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Anti-software patents and pro-software patents are interchangeable depending on which side of the equation one is on. It's a useless comparator, like good/bad, as it requires two parties, neither of which agree, or they wouldn't be having the 'discussion' in the first place. For the purposes of a patent, a patent is a patent is a patent until, or if, a judge/jury decides differently on a case by case basis.

But your point (2) there, is only about 1/3 of how consortiums actually operate. What you've described is like Consortium Markets 101 and while it isn't wrong, the actual working of consortiums are so abstracted from the basics understood by the general public that it's like declaring oneself an ophthalmologist because you've got a mirror and can successfully insert and remove contact lenses.

Condortiums are not, nor have they ever been, akin to intraoffice lottery pools or 'hunt club' property purchases, which is often how they're described. It's a all very complex scam system, so I'll summarize below.

Party (A) has (Thing) they want to sell, but it's too expensive for any single party. So a bunch of party's get together and make an offer/bid on the (Thing). That's straightforward and what you described, but there's all kinds of shit going on in the background that in any other scenario would be illegal as hell.

So, that price, or price range, for (Thing) is variable, and is a function of who is in the consortium. There are people who devote their lives to refining the formulas for determining the value of (Thing) based on who is in a given consortium, but it all boils down to increasing the price of (Thing) depending on how much money given consortium members have, and how much of any deal will be cash now, versus stock or other property now, or over a period of time.

It isn't as simple as a potential consortium member saying (Thing) is too expensive. It becomes a cut and dry accounting exercise where you figure in the cost of (Thing), without your involvement (the actual pricing formulas used by (Party) A are never disclosed, so you've got to have senior management and Board Members who know their shit, and can lean on people for privy information). So you make your best calculations and determine if the cost increase, due to your involvement in the consortium, is more, or less, than it will cost you to litigate and arrive at the same destination by a different route.

It's also not uncommon to make trades with other consortium members for you to remove yourself from membership. In obviously defensive moves, consortium members will pool their analytical resources and try to figure out who is making (Thing) too expensive, and they make you offers to go home. Not write you a check offers, but offers like a heads up on their internal R&D projects and timelines, others will let you know they're considering a 30% reduction in marketing spend in a place where you want to grow, others might have nice nuggets of info about their partners/your enemies.

Just all kinds of shit to get you to leave to reduce the price for everyone else. We'll never know if that happened here, but it wouldn't surprise me one tiny bit. There are things far more valuable than money you know. Even to CEOs of Globocorps. (Incidentally, those more valuable things are why the teleconferencing industry will never get into the actual executive offices they want so badly to be in, and why private jets are a growing market. You just can't have conversations about serious stuff unless all the players are in the same room).

But wait, there's more!

Waiting in the antechamber of any final deal between (Party A) and the consortium are battalions of accountants specializing in arcane practices, mostly outlawed under normal circumstances, and lawyers are waiting to rush out into the world and advise their clients to jack up the value of their patents and have jacked up their services accordingly as well. Lawsuits are stopped, and others begun based on who is now holding the shitty potato (patent package) and at the end of the day it costs none if the participants not a single shiny penny.

Know why? That's because the price of your gadget is about to go up and your salary remain frozen, or not increase as much as you had hoped (or if you're really unlucky, your salary is about to flatline as your job is shitcanned).

But before you go out to defend whoever, make sure you've got all the information you need or you risk ending up opening the gates to your own city to the advancing army. There's absolutely no way you can have the information necessary to know the reasons behind Google's decision. I actually know some of the people involved in all this bullshit, and I also know they would let you execute their families in front of them before they disclosed anything about the internal goings on of this matter. Nobody except those involved will ever know the details, but one thing is absolutely certain, no part of any of this is going to be remotely beneficial to the consumer.

Supporting any single part of consortium/cabal/coven activities is lunacy unless you're actually sitting in one of the big chairs. They're the only Humans/Lizard People/Litches who will benefit. Even shareholders of the consortium member companies often don't really benefit, as I said above, it's not uncommon to trade information of extraordinary value for arranging things more to the liking of the direct beneficiaries.

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Re: @Peter2

That's about 10% of the actual story. And I believe you'll find, in the the wonderful, and publicly accessible, for free, archive of industrial history you'll find that 10% of the story is 100% bullshit.

Know how I know? The War Department, and now DoD, have had, since the 1790 founding of the USPTO, the right to build war materiel using patented inventions at the time of need with any payments due, or damages done by distributing the work to other capable industries (who might be your direct competitors) to be sorted out after the formal cessation of hostilities.

Neat huh? Modern government, rightfully, takes a lot of flak for being comprised of societies biggest jackasses, but the War Department and USPTO were built when men were men, and no snotty little industrialist was going to stand in the way of your proving your manliness by straight killing some foreigners. There's a lot of legalese that goes along with it, but basically, by applying for, and being awarded a patent you're receiving a temporary monopoly on the patented idea and the US public is funding that monopoly by the prices they pay for the patented article.

The manly men figured since you had already sold your idea to the American Public, that it would be OK if they took an advance if it meant you'd still have customers left alive after the shooting stopped. See, no snotty little lawyers were going to stop the manly men either, because lawyers and former Secretaries of Treasury all die by honorable duel just the same. Besides, while pistol balls express no bias, nobody likes lawyers, especially the sorts who run a thing called the War Department.

The War Department, Congress and the President felt so strongly about all this that they even made it really easy to do. No President handy (they still actually moved with their troops then, instead of watching on CNN), no problem. Pretty much every executive member of government could enact the patent 'advance' legislation and so can leaders of actual combat forces, from the field no less! No vote required.

If you want more information, you can look into the trade provisions between the US, France and England in the run up to WWI. The very same fears of England siding with the, then, CSA, (resulting in the Emancipation Proclamation) had seen post civil war updates to patent recognition and both France and England had agreed to recognize all US inventions awarded US patents if we'd (really this time) stop pillaging their patents.

At the end of the day, it wasn't a patent issue that led to the US having such shitty planes when we got into the war. A much bandied about, romantic tale about IP disputes causing the US to have poor air capabilities turns out to be little more than outright lies dressed up as lobbying bullshit.

The much less exciting, and wholly unromantic, truth of the matter was that the radial engines in planes of that era were deemed insufficiently reliable, and too resource intensive, to justify huge expense in scaling manufacturing and cutting back on things like nifty helmets, rifles, cannons, ships, grenades, and crucially, tack for mounted cavalry. Actual horses and donkeys, floated to Europe and used extensively because the automobiles of the era were shit too.

All that's public information. Even the requisitions for metal for pack animal tack and why it rated a higher priority than airplane engines. Our country is many things, many of them dangerously infantile, and one of those dangerously infantile things that's built into the very core of everything the country is built on is that nobody is going to stop our march to (any) war and we'll do it in the most flashy, useless and wasteful way possible. But God Damnit, we'll do it with whatever we want, when we want and won't ask permission, or at least won't give a shit about the answer. We never lose, because we can just rewrite the goals after we've failed to meet the originals, and no bicycle mechanics (and arguably highly aggressive thieves) were ever going to disrupt that. We had no Gitmo then, but by God, we had Texas and if some snotty little shit got in the way, off to Texas they went (we use Texas like England uses Wales, we just take what we want and send all our undesirable Christians there, because it's empty and nobody can get hurt).

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Rockstar really should have known better

than to go up against a company that knows more about their business, their customers, their support system, their lawyers and most likely even their email traffic than they do.

Where's the icon for the All Seeing Eye of Sauron?

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@ Don Jefe: With one small but important caveat:

The case has to occur entirely within the US.

Worked for a company a long time ago that had a truly original idea (nowhere else in the industry before hand, greatly sped up processing and increased accuracy of results) and a properly obtained patent. Key component was a small fluid reservoir filled with a compressible fluid. The action of the device depended solely on the compressibility of the fluid in the reservoir. Company in France built a differently shaped reservoir and filed for a patent in France. My company sued. French court found in favor of the French company and ruled my company had to pay royalties to the French company if we sold our device in France. I could see an improvement if they improved on the fluid, or maybe even the membrane, but not for changing the shape of the reservoir.

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Meh

"Moreover, because Apple is the majority shareholder in Rockstar and Rockstar's lawsuits have a "direct link" with Apple's unique business interests..."

If you can't take them directly, try the flanks? I wonder how much Apple...."Encouraged" this obvious troll.

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It does make one wonder, doesn't it? Apple, who's been in everyone's legal face is a major investor in a patent troll which set up another company the day before filing suits against longtime thorn in their side, Google. They then get a judge who sees through the smoke and mirrors.... this will be worth following.

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Anonymous Coward

"this obvious troll."

Rockstar isn't a traditional troll as such. It directly represents companies like Microsoft and Apple that are certainly not NPEs....

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Anonymous Coward

It is not a troll - it is a privateer.

It actually is a proper "target" so in theory if you hit it hard enough it will sink and some damage will be relayed to its "owners".

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Happy

What a difference it makes

What a difference it makes, to have a judge other than judge Lucy on a ip case. Maybe this time we can hope for a real trial and that the patent troll will be duly spanked at the end of it?

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Re: What a difference it makes

Totally. The only thing I can think of with that is Samsung is just building up a monstrous amount of evidence to show horrendous amounts of bias. Every other judge who deals with this stuff (Google Vs Oracles, this one here) appears to want to get to the meat of the matter and get facts out, ALL the facts. Not disallow anything that helps Samsung. That she used to work for the company who dealt with Apple IP issues still strikes me as odd she's even allowed to deal with a case that has apparent bias.

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God, common sense!

My secret wish is for Rockstar to appeal this decision all the way to the Supreme Court, and for the Supreme Court to rule that no trial should ever happen in the Eastern district of Texas except when all the parties involved have exclusively existed in that district for at least ten years.

If there is a worse thing than patent trolls, it is the court that legitimates half of patent trolls.

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Facepalm

Re: God, common sense!

Your post's title rejoices in an apparent discovery of judicial common sense, then immediately invokes SCOTUS to validate said common sense.

You're clearly not from around here, are you?

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Thumb Down

Security for Costs

would nail the Troll - about USD$10,000,000 deposited IN CASH with the court.

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Anonymous Coward

Re: Security for Costs

Not in this case - Rockstar are extremely well funded.

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Re: Security for Costs @AC

Well lets up it $20bn then, that just may make them think twice.

How on earth this stupid patent nonsense isn't being hauled up before competition authorities I'll never know as it's obviously being used as a barrier to entry and to stifle competition.

Oh hang on, brown envelopes to politician's campaign funds.

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Re: Security for Costs @AC

Brown envelopes are so old school.

Nowadays it's more of the "turn your eyes the other side, and when it's time for you to retire I'll employ your daughter's consultancy agency with generous compensation" variety.

In my country they don't even bother with pretense, the 'public service' employees land in very nice jobs immediately after their tenure.

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i cant wait for this to..

..get started. Aplle and Microsoft will be exposed as the true patent trolls they are funding a proxy. Its going to be great seeing them squirm and eventually distance themselves from trollstar as the case goes on

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Anonymous Coward

Re: i cant wait for this to..

..get started. Aplle and Microsoft

i had to read this twice as the mis-spelling looked to be saying "A Pile" and i was slightly surprised that the other entity was also not referred to in its colloquial form as "micro$haft" or similar... it was still entertaining and i do fully agree with your sentiments :)

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Anonymous Coward

Re: i cant wait for this to..

"Aplle and Microsoft will be exposed as the true patent trolls they are "

If they are defending valid patents (and plenty of previous legal cases have demonstrated that they are) then they are not trolls - they both generally make products and actively use technology based on these patents. Patent troll usually refers to Non Practising Entities (NPEs) that exist just to extort money and have no intention of any party actually producing products based on the patents in question. That clearly is not the case here.

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Re: i cant wait for this to..

I think the spelling should be Appal.

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Coat

IP Deathmatch

something akin to "Celebrity Deathmatch" which used to be on MTV.

Get the lawyers into the ring, until the last one is standing. Then do away with that one as well to put us out of our misery. Ratings winner.

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Re: IP Deathmatch

Story in NYT today.

The Wright brothers spent the decade after inventing the airplane suing every other maker of aircraft - claiming that their patents covered not only their solution to the problem but all others.

So flaps (which they didn't invent) were covered by their wing warping method (which nobody now uses)

They spent so much time in court and neglecting their business that they and their backers went bust and by the entry into WWI the US declared it had no usable aircraft designs and had to buy French ones.

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Unhappy

Re: IP Deathmatch

This is far from new. The development of steam engines was held up for years in exactly the same way.

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Anonymous Coward

Re: IP Deathmatch

"The Wright brothers spent the decade after inventing the airplane suing every other maker of aircraft - claiming that their patents covered not only their solution to the problem but all others."

I can't see any history of them suing balloon makers, etc. Only aircraft makers - which they clearly did invent and patent.

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Anonymous Coward

Re: IP Deathmatch

"This is far from new. The development of steam engines was held up for years in exactly the same way."

Erm, no - James Watt introduced many advances to stream engines in a relatively short period of time - for instance using 75% less fuel than previous generation - ongoing development work for which was funded by his clearly new and innovative patents for features like the surface cooled condenser and the centrifugal governor.

Anyone was free to develop alternatives or other improvements - but if they used his features they had to pay him a license fee. Perfectly reasonable considering he invented what were a number of significant and non obvious improvements.

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Headmaster

Re: James Watt introduced many advances..........

Indeed he did. His advances were key to the development of manufacturing and transport at the heart of the industrial revolution. The importance of his contribution cannot be emphasised too much.

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Re: James Watt introduced many advances..........

I wan't thinking of Watt.

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Anonymous Coward

Re: James Watt introduced many advances..........

Quite - so the same applies to the patents here - which cover a vast range of innovative and non obvious inventions.

Google is well aware that it is leveraging the patented inventions of other - and had the option to license this IP and has refused - so should be made to pay a lot more for being a wilful infringer.

Google already tried to buy a suite of patents from Motorola and other to make the same type of attack on other companies - except those patents turned out to be mostly worthless - and Google has failed at every turn...So don't have any sympathy for Google - they absolutely deserve what is coming...

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Go

BUSTED!

As such, she said, "the traditional notions of fair play and justice would not be offended" if the court considered Rockstar and MobileStar to be a single entity.

Firing up the Universal Translator, it appears that that's juris-speak for "fuck you very much, assholes!"

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is it still being a patent troll if you patent fantasies, never build actual hardware on those patents and are one of a few huge Silicon Valley tech companies who paid for their politicians already and got some nice "no competition" clauses secretly in place with all the big players?

Or is that only reserved for the smaller companies who do it?

I think I see how it works, as long as you have at least one (perceived) valuable product released, everything else is kosher. Even if the patents have nothing to do with your one release.

Or is buying patents and locking them up never to be used the difference?

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