
Microsoft patent trolls Salesforce - jfi
http://37signals.com/svn/posts/2341-microsoft-patent-trolls-salesforce
======
btilly
Given the state of the patent system, I think that these are not horrible
patents. Sure, I don't like them either. But remember that the patent system
is supposed to protect things that are obvious after you've seen them, but
which aren't that easy to think up. We've all seen the technologies, so of
course they are obvious to us now. But were they obvious at the time?

Take, for instance, patent #8, "Method and system for identifying and
obtaining computer software from a remote computer" (see
[http://patft.uspto.gov/netacgi/nph-
Parser?Sect1=PTO1&Sec...](http://patft.uspto.gov/netacgi/nph-
Parser?Sect1=PTO1&Sect2=HITOFF&d=PALL&p=1&u=%2Fnetahtml%2FPTO%2Fsrchnum.htm&r=1&f=G&l=50&s1=5,845,077.PN.&OS=PN/5,845,077&RS=PN/5,845,077)
for details). It covers a system for having lots of machines keep themselves
up to date with a central repository. Obvious, right? We can all think of a
ton of examples. For instance Debian's apt fits virtually all of the claims
except the ones involving payment. (For some reason Debian doesn't worry about
that much. :-) )

But look when it was filed. November 27, 1995. That's well before apt. In fact
it was the same year that Debian first released dselect. I don't know if
dselect was advanced enough back then match the patent. If so then that is
prior art and I'd suggest that Salesforce's lawyers look carefully at it.

If it is not, then finding prior art may be a challenge. People today are used
to subscription-based software distribution. But pick up _Founders at Work_
and read the interview with Arthur van Hoff about Marimba, which was founded
in 1996 (after the patent was filed) and was in the business of subscription-
based software with automatic updates. He talks a bit about how new the idea
was, and how it was difficult to get people to try it.

That tells me that, at the time and with the way people were used to working,
this technology really was new and innovative. Now I really, really hope that
someone can find prior art and smack Microsoft down. I don't want this kind of
patent to threaten software I use.

But as far as patents go, this seems relatively good. (The fact that it is
still bad is an argument against software patents in general, and not this
particular patent.)

~~~
vtnext
This is an example of an obvious idea - only it won't be obvious until people
start using networked computers for some time and realize the need.
Unfortunately we have a low bar for what is not obvious, e.g. when no one else
has yet had the need for it. Being the first to do something should not give
anyone the right to prevent others from doing it.

Patents are a net cost to society, and software and business patents are
teeing up to explode those costs. A large tax on the real economy this way
comes, with the spoils largely to lawyers and financiers who produce nothing
of real value.

~~~
btilly
I absolutely agree. The fact that I know of 2 independent reinventions in the
period between filing and issuance underscores your point.

But the recollections of the Marimba founder, and my memories of how people
around me reacted to apt, both confirm my point that the technology seemed
very innovative to most people at the time.

------
ccc3
From the suit:

 _As a result of the Defendant’s unlawful infringement of the Microsoft
patents-in-suit, Microsoft has suffered and will continue to suffer damage._

The patent system's primary goal seems to have become protecting patent
holders, which really ought to be only a secondary function. The original
purpose of patents was to encourage innovations that would benefit society. It
was a simple trade: if you invent something that will help society, society
will give you protection against competition for some period of time. Somehow
the system has morphed from a tool for encouraging innovation into a panicked
land grab. And in the case of software patents like the ones in this suit,
society receives very little benefit for the protection it provides.

~~~
jamesbritt
"The patent system's primary goal seems to have become protecting patent
holders, which really ought to be only a secondary function. The original
purpose of patents was to encourage innovations that would benefit society. It
was a simple trade: if you invent something that will help society, society
will give you protection against competition for some period of time."

Exactly. How do you have one without the other? Should Microsoft (or any other
patent holder) go to court and argue on the basis that society is not being
well served?

The patent owner needs to show harm, which is what patent law was supposed to
protect them from. The stated reason for such laws is "to promote the progress
of science and useful arts", but if you are a patent or copyright holder your
argument needs to be that you are not being provided the protection you had
expected under the law.

"And in the case of software patents like the ones in this suit, society
receives very little benefit for the protection it provides."

That may be. Some patents are for essentially trivial ideas, or ideas that
have been in the ether for quite some time. Other patents are indeed clever,
and more to the point are the results of an investment of time and money.
Without some assurance of recouping that investment some number of valuable
ideas would not see the light of day. (Or so I believe. I don't have any
citations to back this up.)

Any article that simply refers to a patent abstract as proof of the triviality
of a patent is itself trolling. Patent abstracts offer a very broad
description; it is the detailed body of the patent that distinguishes it.

~~~
ccc3
- _Exactly. How do you have one without the other?_

If obvious patents are granted, society will be giving it's protection at a
net loss. For society there is a cost incurred in enforcing protection as well
as an opportunity cost in forbidding competition (assuming you believe
competition creates better products). This trade-off could be worth it, but
only if if the invention would not have emerged, or would have taken a long
time to emerge, without protection.

- _Should Microsoft (or any other patent holder) go to court and argue on the basis that society is not being well served?_

Absolutely not. They should never have to argue for anyone but themselves in
court. Microsoft is just playing the patent game by the rules that exist
today. My problem is with a system that is neglecting its purpose. The problem
seems to be rooted in patent rules that are massively out of touch with the
current state (and pace) of technology.

- _Any article that simply refers to a patent abstract as proof of the triviality of a patent is itself trolling. Patent abstracts offer a very broad description; it is the detailed body of the patent that distinguishes it._

You're absolutely right in saying that it's not fair to criticize a patent
simply by its abstract. The problem is that often the detailed description in
the body of the patent is far too broad. Many patents have less to do with a
specific invention and more to do with gaining blanket coverage of a large
swath of IP. This is the game that large companies and their patent lawyers
are playing. I would argue that a system where "he who has the most lawyers
wins" is very counterproductive to invention and innovation.

------
ct4ul4u
It's not a patent troll when a competitor goes after you with patents they
acquired doing R&D for real products. The patents sound like they shouldn't
have been issued, but that's a different problem.

A troll has no real business other than acquiring patents and suing companies
(or arranging for them to be sued).

~~~
ericb
I think this is semantics. You don't have to be a _patent troll_ -an entity
like you describe with no other real business, in order to go _patent
trolling_.

MS is trying to be a troll under the bridge for Salesforce, and if you look at
the patents, they are so broad and non-innovative that using them in an
offensive manner constitutes trolling.

~~~
ct4ul4u
I don't think you can evaluate this by looking at the patents. If your sole
business is patent suits, you're going to sue every time. If your business has
paying customers, there's a chance you're going to spend more of your
attention on them than your patent portfolio.

------
marknutter
I understand the need for people on HN to play devil's advocate and try to
defend Microsoft's actions, but I don't think there's much of a case here in
their favor, even if one did really dig into the patents. Microsoft should be
spending its time and resources making their own software better, not suing
other successful companies. To me this whole debacle stinks of desperation.
Microsoft can't figure out how to find success in the web applications space
and out of frustration are simply choosing to sue the most successful SaaS
companies. I knew things were getting bad at MS, but I didn't realize they
were this bad.

~~~
Maascamp
I'm sorry but that's a pretty weak argument. So does that mean that any
company with patents should just suck it up if someone infringes instead of
defending their IP? Regardless of what you think of the validity of patent, it
was granted and MS has a right to defend it.

If you put in time doing research and then spend time and money patenting that
research because you believe it to be innovative (subjective), would you just
suck it up and "try to make your own software better" if someone copied your
work?

~~~
flatline
Among all the companies out there that are arguably violating these patents,
they choose to go after a high profile, successful, primarily online company
who has been in business using these technologies for years. This is highly
selective and to me indicates that the GP's point probably has some validity.
Can anyone really argue that Salesforce of all companies has somehow infringed
on Microsoft's IP? If they had been enforcing these patents earlier on and
enforcing them uniformly, it would have seemed much less of a patent-troll
style maneuver.

~~~
smallblacksun
If they had instead gone after lots of small companies, you would be
complaining that they were abusing the little guy who couldn't defend himself.

This is not patent trolling because Microsoft actually uses these patents in
their software.

------
10ren
It's pointless looking at patent titles (or abstracts), You have to examine
the _claims_.

Even there, you can't just look at claim 1, because the standard approach is
to begin by claiming overbroadly, and then narrowing the claims, so that
usually claim 1 wouldn't be expected to hold up, but one of the later ones.
Which later ones, you don't know because of the uncertainties of litigation:
it's hard to predict what a court will find. As in negotiating, why not ask
for as much as possible?

It's a little bit like the dubious criminal defence _I didn't kill him, and if
I did it was an accident._

btw typo: in "for infringing the following patent", _patent_ should be
"patents". That confused me.

Gee I sound like a patent advocate/apologist. It's just that I love
inventions.

 _EDIT_ I'm not arguing for these particular patents, but against how they're
being assessed.

~~~
micks56
If claim 1 is tossed then subsequent claims based on claim 1, which will
probably be many, are automatically tossed. Therefore claim 1 better be your
best claim.

For example, in "Method and system for mapping between logical data and
physical data," if Claim 1 is tossed, then claims 2-9 automatically go with
it.

~~~
gjm11
No, you've got that backwards. Suppose you have:

Claim 1. A method for surviving, comprising: Cooking a meal.

Claim 2. A method as in claim 1, wherein the meal is breakfast.

Claim 3. A method as in claim 2, wherein the breakfast comprises sausages and
bacon.

Claim 4. A method as in claim 3, wherein the sausages and bacon are fried.

and so on. A court might decide that there's some prior art for having meals,
and toss out claim 1. But that prior art might only be for lunch and dinner,
in which case claim 2 might survive. On the other hand, maybe someone else has
had breakfast before (publicly enough to count as prior art). Then claim 2
goes too, but maybe claim 3 survives. Oh, too bad, it turns out that the court
thinks having sausage and bacon for breakfast is obvious to one ordinarily
skilled in the art. Bye-bye to claim 3, but maybe frying them is an
extraordinary new idea that no one else would have thought of.

Of course, similar things can happen during patent prosecution (i.e., filing;
the terminology is silly), only now it's the patent office that keeps
objecting to your claims and requiring you to fall back to weaker dependent
claims.

It's absolutely standard for your first claim to be very broad, and subsequent
ones to be narrower. It's absolutely not standard for claim 1 to be "best" in
the sense of "least likely to be invalidated".

~~~
bad_user
Yes, but if you're not doing Claim 1 ... i.e. you're not cooking a meal ...
even if your meal is breakfast, and the breakfast comprises sausages and bacon
and those are fried ... you're not infringing.

~~~
micks56
Exactly.

Salesforce can defend two ways: 1) challenge the validity of the patent, or 2)
prove that they don't infringe the patent.

Option 1 is harder. Patents are presumed valid. Defendant (Salesforce) has the
burden of proof that the patent should be overturned. Salesforce will have to
do that for each alleged infringing claim.

Option 2 is easier. Plaintiff (Microsoft) has the burden of proving
infringement. Salesforce just needs to show that they aren't infringing claim
1 and then they also aren't infringing claims 2-9.

------
sbov
Some of these patents were assigned in the mid-90's. Where has Microsoft been
all this time?

Patents should have an "enforce it or lose it" clause. Some of these may have
been novel at the time of filing. However, after some time of being
unenforced, they become standard practice in an industry. Then after 10 years
of standard use some company comes out of nowhere and tries to enforce it? Too
late.

~~~
smallblacksun
Trademarks have the "enforce it or lose it" clause. This causes companies to
be forced to go after all non-commercial use of the trademark, causing hassles
for the people they are going after, and money for the company. That doesn't
necessarily mean that your idea is a bad one, jut that you have to watch out
for unintended consequences.

~~~
steveklabnik
It would have the awesome intended consequence of exposing how patents
actually hinder innovation, not improve it.

------
motters
I say this with some reluctance because I've written quite a lot of Mono/C#
code, but to me this absolutely proves beyond any reasonable doubt that the
software patent threat from Microsoft is real and not just some abstract
academic debate. I think I'll be limiting or scaling down my use of .NET on
linux in future as a consequence.

~~~
WalterGR
> to me this absolutely proves beyond any reasonable doubt that the software
> patent threat from Microsoft is real and not just some abstract academic
> debate.

Honest question follows after the quote.

[http://www.techflash.com/seattle/2010/05/microsoft_sues_sale...](http://www.techflash.com/seattle/2010/05/microsoft_sues_salesforcecom_alleging_patent_infringement.html)

> "Although Microsoft has been a frequent target of patent-infringement claims
> itself, it's only the fourth time in its history that the Redmond company
> has filed a patent-infringement suit against a competitor, and the company
> has said in the past that it views such actions as a last resort when it has
> been unable to negotiate a licensing deal."

Do you use technology provided by (just throwing out names) Google, Apple,
HTC, Oracle, etc.? Have they proven to be less litigious?

If you do use technology provided by other companies, are you also planning on
scaling back their use?

~~~
motters
I'm thinking in terms of programming languages rather than products from
particular companies. Recently I've gone back to using C/C++ and might also
start using Python. As far as I know there are no software patent issues with
those languages.

------
anujseth
I don't care if I get down voted to oblivion for this, but I can't take the
assholery anymore. When Apple et. al. file such suits its strategic, when they
arbitrarily try to kill stuff its also strategic and jobs being
jesus.Microsoft so much as moves a muscle and Apple trolls that have infested
todays 'new' media and companies such as the above swing into action. Fucking
37 signals, what a sad day indeed.

~~~
mtarnovan
I agree with your observation. Also I think some of the posters here of HN are
trying to hard to play devil's advocate based on how much they like that
particular devil.

------
raphar
I've some questions about "A method for providing a web page having an
embedded menu to a web browser and for displaying the web page to a user of
the web browser are provided."

The original text: _A request for a web page is received from a web browser In
response to the request, a web page and an applet associated with the web page
are packaged for transmission to the web browser. The web page and the applet
are then transmitted to and downloaded by the web browser. When the web page
is displayed and the applet is executed by the web browser, the applet creates
and manages an embedded menu in the displayed web page under control of the
applet . This embedded menu provides a user of the web browser with a
plurality of links through one action in the displayed web page_

An applet? Does Salesforce use an applet to draw its menus? (that's so '90s).
Is the patent valid if Salesforces does its menus only with HTML?

ADDED: May Flash be considered as an applet?

~~~
jcromartie
Based on the patent claims, they are talking about absolutely nothing more
than a Java applet with a menu in it.

This is insane.

------
geoffc
This is unusual behavior for MS. I wonder if this is the opening move in a
buyout/takeover gambit.

~~~
CoryMathews
expanding on "unusual" its only the 4th time they have done this.

~~~
geoffc
I don't have the specifics but I believe the other times were narrower claims
against specific technologies. This is a broad brush stroke against an entire
industry segment.

------
tzs
Is it really hacker news every time some idiot writes yet another inaccurate
article about a patent lawsuit?

------
bcardarella
I think this is a pretty bullshit move by MS but I have a hard time feeling
back for Salesforce. Their software _really_ sucks.

~~~
novum
Can you be more specific?

[Disclaimer: I work for salesforce.]

~~~
bcardarella
Your API is _terrible_. That wouldn't be such an issue if the documentation
was any good. Getting an answer from tech support even though we were paying
customers never happened.

~~~
novum
Again, can you be more specific? Which API: Visualforce, Apex, web services,
chatter, ... ? What about it needs improvement?

