
German Patent Ruling Threatens Microsoft's Windows Phone Earnings From Android - salient
http://www.forbes.com/sites/timworstall/2013/12/06/german-patent-ruling-threatens-microsofts-windows-phone-earnings-from-android/
======
naner
Back in 2009 Microsoft sued TomTom[1] over what appear to be US versions of
this patent[2][3] (EU version here[4]) and won. There were subsequently
efforts to work around this patent in the Linux implementation of FAT[5].

1: [http://arstechnica.com/information-
technology/2009/02/micros...](http://arstechnica.com/information-
technology/2009/02/microsoft-sues-tomtom-over-fat-patents-in-linux-based-
device/)

2:
[http://www.google.com/patents?id=bUohAAAAEBAJ](http://www.google.com/patents?id=bUohAAAAEBAJ)

3:
[http://www.google.com/patents?id=cLAkAAAAEBAJ](http://www.google.com/patents?id=cLAkAAAAEBAJ)

4:
[http://www.google.com/patents/EP0618540A3](http://www.google.com/patents/EP0618540A3)

5: [http://arstechnica.com/information-
technology/2009/07/vfat-l...](http://arstechnica.com/information-
technology/2009/07/vfat-linux-patch-could-circumvent-microsofts-patent-
claims/)

------
Morgawr
For those interested, this seems to be the email/thread that was cited.

[https://groups.google.com/forum/#!topic/comp.os.minix/0rgZpp...](https://groups.google.com/forum/#!topic/comp.os.minix/0rgZpprg_Eo)

~~~
ErsatzVerkehr
In which Linus is calm, friendly, and helpful!

~~~
Morgawr
He's actually like this most of the time, it's a shame that the media only
reports his outbursts. He's an amazing person and surprisingly accepting on
other people and fellow developers.

~~~
RexRollman
To me, he just sometimes lacks tact. And there are way too many overly-
sensitive people out there.

I think DeRaadt is in the same position (although I'll concede that he is more
tactless than Torvalds).

~~~
sigkill
So it's just a normal case of Dutch directness?

~~~
kintamanimatt
Linus is Finnish and Theo is South African.

------
mtgx
So in other words, Microsoft _stole_ Linus' ideas, and then asked everyone to
pay _them_ for it. At least going by Microsoft's own logic in general.

Frankly, I've always thought it's ridiculous that FAT isn't at the very least
a FRAND patent, considering how much monopolistic power Microsoft had in the
desktop OS space, and I'm surprised that in the anti-trust lawsuits against
them, this wasn't raised as an issue. I guess back then they didn't really
enforce FAT patents the way they started doing after Android took off, and saw
it as an excellent opportunity for _rent-seeking_.

~~~
ghshephard
Well, patents, much like copyrights, only have value inasmuch as you are
prepared to pay to fight it out in court. Copyrights are a little more
straight forward, as "invalidation" (absent of plagiarism) is less common
(though not unheard of).

The stack exchange guys have a whole site dedicated to finding prior art to
invalidate patents. [http://patents.stackexchange.com/questions/tagged/prior-
art-...](http://patents.stackexchange.com/questions/tagged/prior-art-request)

------
ghshephard
US5758352 was filed on Sep 5, 1996, so it's still got another three years of
life before we can bury the silly thing.

US5960411 A (One Click Shopping) Dies a year later (filed Sep 12, 1997)

A whole host of idiotic patents should be ending their life in the next
several years.

~~~
bborud
For each idiotic patent that expires I would suspect that more than one
idiotic patent is granted.

This nonsense won't stop until we abolish patents. And we really need to
abolish patents. Completely. The patent system can't be fixed.

~~~
wheaties
No, patents serve a good purpose outside of software and in many disciplines.
It's just in software where we see the worst side of the patent system, i.e.
"tack on computer to anything and it's 'original.'"

~~~
felipeko
I don't think you can prove this.

I'd love to see research proving patents do more good than harm (in any
field).

~~~
wheaties
Actually in medicine we have both the good and bad of patents. For any drug to
be brought to market in the U.S. there is, by necessity, a long and expensive
process to ensure a drug does more benefit than harm. This process can cost
millions of dollars but producing the formula + manufacturing is often not
nearly as expensive. Hence, a patent, because of the legal framework for which
these inventions are conceived within, granting a monopoly for a short period
of time is the only thing that promotes or gives companys an incentive to
continue on with FDA approval.

This, by the way, is no means or excuse for some of the shenanigans drug
manufacturers take part in. It merely is one illustration of why a patent
system should exist.

~~~
codeflo
In medicine, patents are a government-granted benefit to inventors that sort
of counteracts the government-imposed penalty of having to go through FDA
approval. There's a nice symmetry here.

If we look at industries with less regulation, like software, the necessity
for a patent system is a lot less clear.

~~~
zanny
> like software, the necessity for a patent system is a lot less clear.

Software is a terrible example, since every story such as this one
demonstrates how absurd and stupid software patents are. It is plain as day.

------
aw3c2
Avoid Forbes, use the source: [http://www.fosspatents.com/2013/12/federal-
patent-court-of-g...](http://www.fosspatents.com/2013/12/federal-patent-court-
of-germany.html)

~~~
tehabe
Florian Müller is in no way an independent source. He has a huge bias towards
patents and against Google.

He used to or he is working as a consultant for Microsoft and Oracle. Even
though he used to campaign against software patents in the past.

As an old saying goes: He who pays the piper, calls the tune.

Edit: writing English on a Saturday afternoon shouldn't be that hard, right?
Wrong! :-(

~~~
mtarnovan
Huge bias _towards_ patents ? This is the guy that launched
NoSoftwarePatents.com, right ?

~~~
tehabe
I mentioned he was campaigning against software patents in the past. But his
pieces are not critical about patents but very critical about Google. Maybe it
is more a bias against Google than towards patents.

However the case, he is not a reliable or independent source in the smartphone
IP wars.

~~~
sbuk
Who is?

------
PythonicAlpha
Another ridiculous software patent that should die!

I people had patented B-trees, there would be no MySQL or other free database
and royalities had to be paid on any database of the world.

Or guess, somebody would have patented Quicksearch ... a thousand times more
plausible thing to patent.

~~~
penguindev
do you mean quicksort?

~~~
PythonicAlpha
Oh right! You are so right! Unfortunately, I can't correct the comment
anymore.

------
jbuzbee
The cynic in me says that even if the patent is thrown out, it will have
little effect on the extortion that Microsoft is practicing against Android.
They'll just find another vague patent to threaten manufacturers with.

~~~
mtgx
I'm sure they'll try. But what matters most is that their patent threatening
was already on shaky grounds to begin with. If someone like Samsung stops
paying them, it might have a domino effect, and sooner or later more companies
will try to actually test Microsoft's patents in Court. I think it's only a
matter of time anyway, especially if this ruling remains permanent, which
would embolden Android OEM's.

------
WildUtah
Microsoft's earnings from Android trolling are not a matter of public record.
Each agreement M'soft has made is secret.

In fact, there is no strong, solid evidence that M'soft is making any money at
all off Android. When Barnes and Noble's Nook refused to pay the danegeld,
M'soft sued and then settled to avoid discovery. Nook actually got paid by
M'soft in the settlement, though M'soft ended up with considerable control of
the unprofitable Nook in exchange.

Speculation is that HTC agreed to make and market Windows Phone phones instead
of paying royalties. If that kind of agreement was common, it's no wonder that
all the non-Nokia Windows Phone phones were garbage: They were produced under
duress.

Also, my Android 4 devices no longer support any kind of FAT filesystems the
way my Android 2 phones did. I think Google already started making FAT
optional just so as to avoid paying for patents like this one.

~~~
jacalata
Sounds like wild speculation, without any citations.

------
throwawaykf
Same thing happened at the ITC last year (except I'm not sure if an ITC ruling
can actually invalidate patents):

[http://www.h-online.com/open/news/item/VFat-patent-could-
be-...](http://www.h-online.com/open/news/item/VFat-patent-could-be-
invalidated-thanks-to-Motorola-and-Torvalds-1486484.html)

However TFA is being silly in claiming it threatens any significnt portion of
MSFT's licensing revenue. Companies that size don't typically license
individual patents, they license portfolios of patents.

Now the following is all speculation, since these licensing deals are very
closely guarded, but from the few I've heard of: I'm guessing Microsoft's
"smartphone" (or maybe the "linux") portfolio has dozens of patents, each of
varying value, of which this was just one. So the portfolio's value will
decrease a bit, but I'm guessing not by much.

------
dylz
[http://worldwide.espacenet.com/publicationDetails/originalDo...](http://worldwide.espacenet.com/publicationDetails/originalDocument?FT=D&date=20011212&DB=worldwide.espacenet.com&locale=en_EP&CC=EP&NR=0618540B1&KC=B1&ND=4)

~~~
dchest
Apparently, this is a link to the original patent, which automatically
downloads PDF of its cover page.

------
davesims
TIL Microsoft makes (a lot) more money on Android than Google does.

------
belgianguy
While I do speculate that Microsoft has more vague patents that it's using to
sap Android OEMs, I do think this was one of the more prominent patents, as
Microsoft itself went on the offense with it (IIRC it tried to get Motorola
phones banned for violating it).

It made my day to see that a comment by Linus Torvalds himself made this
patent end up in the garbage bin of IP harassments.

------
krsunny
This title is confusing.. "From Android" ?

------
goggles99
> _we don’t really have a German or UK or whatever patent system any more, we
> have a European Union one. So this German case doesn’t apply just to
> Germany, it applies right across the EU_

This has got to be false information. It was mentioned that this was a ruling
of the _Federal Patent Court of Germany, BPatG_. Since when does a German
patent court dictate EU patent laws and rulings? does this mean that if a
patent court in another EU country ruled the other way that that is now the
new EU stance? This makes no logical sense.

~~~
bjelkeman-again
"A patent granted by the EPO does not lead to a single European Union-wide
patent enforceable before one single court, but rather to independent national
patents enforceable by national courts according to different national
legislations and procedures."

[http://en.wikipedia.org/wiki/European_patent_law](http://en.wikipedia.org/wiki/European_patent_law)

~~~
onli
Other information I find have the same consequence
([http://en.wikipedia.org/wiki/European_Patent_Convention#Oppo...](http://en.wikipedia.org/wiki/European_Patent_Convention#Opposition)):

 _" A European patent is also non-unitary in that it may be revoked in one
Contracting State while maintained in another. However, a national court in
one Contracting State may not revoke a European patent in another Contracting
State."_

This is a bit surprising. At the beginning of the Samsung vs Apple trials,
also in Germany, it was widely reported that the german ruling would have EU-
wide effects. Those were patent cases as well...

Maybe the difference is between invalidating patents and deciding whether a
patent is infringed by another party.

~~~
jeltz
Samsung v Apple did as far as I know not have any effects outside Germany so I
believe that was just false information.

