
Xbox 360 Should Be Banned from U.S. for Violating Patents, Judge Says - evo_9
http://techland.time.com/2012/05/23/xbox-360-should-be-banned-from-u-s-over-patents-judge-says/?iid=tl-article-mostpop1
======
csallen
The patent system as it exists today is a far cry from what the founders had
in mind when, in the Constitution, they granted Congress the power to "
_promote the Progress of Science and useful Arts_ , by securing for limited
Times to Authors and Inventors the exclusive Right to their respective
Writings and Discoveries."

Nowadays people think of patents as a way of protecting the "property" of
inventors, and so patents are granted and enforced according to that
principle, regardless of whether they promote or hinder progress. The usage of
the words "theft" and "piracy" to refer to patent and copyright infringement
is a symptom of this state of mind.

Thomas Jefferson et al would have called this nonsense. By its very nature, an
idea -- once divulged -- cannot be someone's property, and it should not be
treated as such. To prevent the free flow of ideas through a populace is, in
many cases, harmful. (Imagine a group of hunter gatherers in which one family
has patented the idea of farming.) At _most_ , limited monopolies should be
granted to prevent situations in which nobody is incentivized to create due to
rampant copying. But we still have to be judicious in granting these
monopolies:

    
    
        "...it may be observed that the nations which refuse monopolies of invention
        are as fruitful as England in new and useful devices."
        -- Thomas Jefferson
    
        "But grants of this sort can be justified in very peculiar cases only, if at
        all; the danger being very great that the good resulting from the operation
        of the monopoly, will be overbalanced by the evil effect of the precedent; and
        it being not impossible that the monopoly itself, in its original operation,
        may produce more evil than good."
        -- James Madison
    

It's painful to see copyrights and patents today accomplishing the _polar
opposite_ of what they were intended to. But we've been gradually heading in
this direction for the last 200 years.

In my opinion it's a combination of (a) allowing businesses to have too much
say in law-making, (b) Congress + the populace not being sufficiently educated
about the implications of copyrights and patents, thus giving more power to
the natural tendency to think of ideas as property, and (c) the Supreme Court
following overly non-interventionist policies and allowing Congress to make
unconstitutional decisions.

~~~
drzaiusapelord
I find this constitutional fundamentalist attitude to be just as wrong. The
founders had no idea how the future would turn out. Lets just face facts: the
idea of owning knowledge can never work out fairly thus patents in themselves
are unethical and unfeasible. The system should just be retired. The founders
were wrong about this the same way they were wrong about slavery and other
18th century issues. They are forever limited by their 18th century outlook.

There is no way you can have a "fair" patent system. Its like having "fair"
slavery. Just let it go.

~~~
jay_kyburz
I think there needs to be some way to give companies an opportunity to recoup
their investment in new ideas. I'm just not sure what we have now is working.

~~~
angersock
They have the same chance everyone else does: the market.

~~~
lbo
Without patents, drug research and development would have to be nationalized.
The costs are enormous and drug prices drop 90% in the US after patent
expiration. I would rather have new drugs and high prices for a few years than
no new drugs at all or nationalized drug r&d.

I think the HN community's approach is wrong: patent abolishment isn't
optimal, heavy patent reform is. Patent terms should be regulated and adapted
in each industry like the Fed Funds Rate, not like the 10 commandments.
Software is definitely an example of where they should be abolished, though.

~~~
csallen
I agree. The universe isn't so perfect a place that we can consistently count
on all-or-nothing strategies. Sometimes we have to get a little messy to
devise a working system. Drug research is a great example of an industry where
patents _really are_ necessary to promote the progress of science.

~~~
ekianjo
> Drug research is a great example of an industry where patents really are
> necessary to promote the progress of science.

It's too easy to say it this way. Any data to show us why the case of the
pharma is so different from others ? The costs involved in the pharm industry
depend heavily on: \- government regulation \- expected returns

It's not evolving in any kind of "free market" at all. It's a very poor
example to use to justify patents.

~~~
csallen
Good point, enough reform in this area may make patents totally unnecessary. I
shouldn't have called it a good example without knowing more about it.
However, my intuition is that there _could_ exist a situation or industry in
which patents are justified. We should be careful not to dismiss them
wholesale, and instead should only dismiss them in areas where we can find
superior alternatives.

------
georgemcbay
I used to naively hope that situations like this would force the government to
sit up and take notice at how badly the patent system is broken and how it
hurts most industries more than it helps them, especially hurting the "little
guys" (who are often invoked in defense of the system) disproportionately
since the system is set up to cost so much to "play the game".

But now I know that in the end each will pay the other their necessary
"protection money", the lawyers will skim a huge amount off the top and big
corporate business will go on as usual.

~~~
dromidas
I like how one of his justifications is that upholding copyrights is more in
public interest than our entertainment.

~~~
chc
I don't see where copyright law comes into this.

~~~
dromidas
I probably should have said 'IP rights' but you know what I mean.

Referring to his quote, "a strong public interest in enforcing intellectual
property rights; not enforcing those rights in light of a potential economic
impact occurs only in exceptional circumstances"

------
joelhaus
Did anyone else notice that FOSS Patents gets a citation in this article?

The author, Jared Newman[1], needs someone to point out to him that he is
citing an article written by someone with a major conflict of interest, the
paid Microsoft shill, Florian Mueller[2].

If we ever hope to have public opinion shift on the patent issue, this type of
journalism will only prolong the struggle.

[1] <https://twitter.com/#!/OneJaredNewman>

[2] <http://www.groklaw.net/article.php?story=20120419070127103>

~~~
Natsu
Why would he tout what is clearly bad news for Microsoft?

Personally, I'm sick of all this injunction nonsense, but they need some way
to fight back against Microsoft's patent aggression.

------
Lendal
Maybe they should be banned. Only something of this magnitude would draw the
necessary level of interest from apathetic voters to make this a campaign
issue, thus positive change might result. If a couple of years without Xbox's
is the price for patent reform, I would gladly pay it.

~~~
intended
In this case though it wouldn't work out that way because the topic is pretty
arcane.

Unless the issue can be reduced to a catch phrase that actually encapsulates
the idea, or people see some obviously valuable thing which is clearly being
taken away from them; then its very hard to sell this.

------
jasonkolb
"The Xbox 360 violates four Motorola patents, according to ITC Administrative
Law Judge David Shaw, Wired reports. Shaw made his initial ruling against
Microsoft in April, and now recommends a ban on sales and import of the game
console."

Didn't Google just buy Motorola?

This could get interesting.

~~~
ajross
I'm not sure that I see it that way. If anything I'd think Google would find
it in its (and, frankly, our) best interests to let the patent war escalate
further. The more of a mess it is, the more likely someone in government will
step in to intervene. At this point it's becoming routine for every successful
consumer electronics device to see a patent ban somewhere. That's not
sustainable. I hope.

~~~
taligent
The government will step in alright and investigate Google/Motorola for anti-
trust violation. Just like what is happening in the EU. And I expect them to
be severely punished.

The fact is that Google/Motorola behaviour in abusing the principles of FRAND
is arguably some of the worst seen in the history of the industry. Almost
every single consumer electronic product would have either (a) not existed or
(b) be significantly more expensive without the fair licensing of patent
pools.

~~~
ajross
You honestly think this is worse than what we've seen from Apple, Nokia,
Samsung and Oracle? Seems pretty par for the course to me. Why single out one
bad actor for what is clearly an endemic problem?

~~~
taligent
You don't understand FRAND/patents at all. A patent will rarely impede prevent
entire classes of products being made. But without FRAND many standards would
never have taken off without cheap and fair licensing. No Bluetooth. No WiFi.
No USB. No XBox. No iPhone.

And the reason Google/Motorola is being singled out is because AFAIK nobody
has done this before.

~~~
jkn
Without FRAND, standards would be fine if they required royalty-free licensing
instead, which is preferable.

Google/Motorola are definitely not the first to go to trial over high FRAND
licensing fees (see below). The only thing remarkable with the Google/Motorola
litigation against Apple and Microsoft is that it was a defensive move on
being sued by Apple and Microsoft. It is true they didn't sue Motorola over
FRAND patents [EDIT: or did they? see at bottom]... Not by moral virtue I
think, but because their patents are far too insignificant to be required by a
standard. Note that FRAND is a vague notion that doesn't say what "fair",
"reasonable" and "non-discriminatory" should mean in practice. It leaves place
for negotiations and even injuctions in case of infringement. Here's a good
discussion of FRAND misconceptions:

[http://blog.patentology.com.au/2012/02/fraught-issue-of-
fran...](http://blog.patentology.com.au/2012/02/fraught-issue-of-frand-ii-
politics-of.html)

Excerpt:

 _Why should a company be able knowingly to use a patented technology while
dragging out licensing negotiations with the patentee, secure in the knowledge
that the greatest power the patentee has if agreement cannot be reached is to
ask a court to rule on license terms and royalty rates?_

Now it's true that the fees demanded by Motorola at this stage (2.25% of the
sales price) are higher than usual. But that's after Apple and Microsoft
violated their obligation to contract a license for the patents, and sued
Motorola over their own patents. It is also expected for a party to start with
a higher asking price than what they will eventually settle on. And it is not
completely out of line with other FRAND licensing fees. For example Qualcomm
routinely collects over 3% of the device cost:
[http://www.trefis.com/company?hm=QCOM.trefis&driver=idQC...](http://www.trefis.com/company?hm=QCOM.trefis&driver=idQCOM.0080#/QCOM/n-0014/0080)
(from [http://www.hoista.net/post/17365252561/google-
wants-1-7-bill...](http://www.hoista.net/post/17365252561/google-
wants-1-7-billion-from-unfair-iphone))

Another example is Nokia who recently settled with Apple for around 4.5% of an
iPhone cost: [http://www.guardian.co.uk/technology/2011/jun/14/apple-
nokia...](http://www.guardian.co.uk/technology/2011/jun/14/apple-nokia-patent-
case) (this was also a case of FRAND patents, see
[http://www.scribd.com/doc/28285432/Nokia-s-Motion-to-
Dismiss...](http://www.scribd.com/doc/28285432/Nokia-s-Motion-to-Dismiss-
Apple-s-Implausible-Claims)).

How does that compare to what Motorola asks for? From the Guardian article,
Nokia takes _about 4.5% of the estimated average $264 cost price of an iPhone,
which Apple sells to retailers and phone networks for an average of $660_.
Motorola asks for 2.25% of the sales price, which corresponds to 5.6% of the
device cost. Not so different from the Apple-Nokia deal.

EDIT: According to Motorola, Microsoft used FRAND patents to seek an
injunction to block Motorola's products:

[http://www.itpro.co.uk/639088/motorola-slams-microsoft-
paten...](http://www.itpro.co.uk/639088/motorola-slams-microsoft-patent-
tactics)

 _And Microsoft’s complaint with the International Trade Commission sought
injunctive relief against Motorola Mobility based on Microsoft’s own standards
essential patents. With its recent actions, Microsoft has simply reversed its
position on FRAND in order to suit its current litigation strategy._

------
simba-hiiipower
"The ideal outcome for consumers would be a broad cross-licensing agreement
that would allow the Xbox 360 and Motorola phones to co-exist. But Microsoft
is already getting hefty patent ransoms from other Android phone makers, and
likely doesn’t want to let Motorola off the hook too easily, especially now
that it’s owned by Google."

Ok, not directly related to the bulk of the article, but that point up above
got me thinking.. Couldn't it end up benefiting MSFT if Motorola (now GOOG
controlled) doesn’t pay-up under its Android licensing program? If essentially
all other non-google-owned OEMs are paying a licensing fee and essentially
GOOG itself manages to dodge it, it could further drive a wedge between them
(Samsung, HTC, et all v. Google/Motorola).. leading to those OEMs (who
currently dominate the market) shifting focus to Windows Phone, and thus
benefiting MSFT in the end..? Just a thought; thought I’d share..

------
rbanffy
Well... This is getting _very_ entertaining.

Normally, I'd condemn Motorola's attitude, but Microsoft has been patent-
extorting every Android manufacturer they can intimidate. I really hope
Motorola can beat some sense into Microsoft.

------
bbrtyth
That would teach Microsoft a valuable lesson about harassing Android over
ridiculous software patents.

~~~
tsotha
But the valuable lesson they would draw from it all is "we need to patent
every thought a Microsoft employee has", which is probably not the lesson
you're imagining.

------
gouranga
The patent system is like watching a scene from Alien vs Predator...

"Whoever wins, we all lose" is surprisingly apt as well.

------
nwmcsween
This is one of the reasons I sometimes commit code under a pseudonym rather
than my own name, go ahead and litigate an imaginary person, I honestly could
care less who holds what patents on my code - if it works I'm using it.

~~~
ajross
This won't help anyone. You don't litigate against software authors. Patent
suits are filed (or threatened) against the people who are selling/offering or
otherwise making profits from a plausibly infringing device; because that's
where the money is.

I think maybe you're confusing patent law (which is a civil thing about
damages) and copyright law (which sometimes has criminal penalties). It's not
illegal to write and publish source code implementing patented algorithms. In
fact: the patent itself is in fact supposed to be an officially published
version maintained by the government.

At best, anonymous contributions might insulate you from being subpoenaed
because they can't find you.

~~~
nwmcsween
My goal is to insulate myself from the stupidity that is software patents, I
generally come up with the ideas myself while working but then search for
prior implementations to see it has been patented (some of which should never
have been given a patent).

~~~
RollAHardSix
I've actually had a similar experience with this. I was working on our company
website and came up with something remarkably similar to Amazon's One-Click
Ordering System. Having ordered a max of 3 things off Amazon in the past 10
years; I had absolutely no idea they had any such feature. Continuing my work
lead out to the architecture and rough code-outline of this (I was unusually
excited so I did a bit of pre-coding). Then deciding to 'do my homework' I
went off to find prior implementations; low and behold I came across Amazon's
One-Click Ordering Process. (And also the information covering the two-click
ordering process lawsuit that still went in Amazon's favor).

So my question is if I had implemented such a system would I have been liable?
The sad thing is, looking at the way the patent system is now, I WANT to say
yes. Even with it being my own code just the process being patented would have
prevented me from using it; despite the fact that I came up with a similar
process completely on my own.

It just seems to me that in a way the patent system stifles...innovation. I am
now very concerned about putting my efforts towards something without checking
for a patent first. I'd like to see someone with more experience and legal
knowledge could expand on Patents and Patent Law in general.

------
cooldeal
Meanwhile, MS won another round in Germany against Motorola.

[http://www.engadget.com/2012/05/24/microsoft-motorola-sms-
pa...](http://www.engadget.com/2012/05/24/microsoft-motorola-sms-patent-
germany/)

~~~
jinushaun
Scorched earth

~~~
Symmetry
Or: We had a Mutually Assured Destruction standoff for years, but now the
missiles are flying.

------
rsanchez1
Maybe if the 360 is banned, people will finally wake up to how absurd the
patent system is and demand reform.

