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Motorola wins Xbox and Windows 7 ban in Germany (bbc.co.uk)
149 points by alsothings on May 2, 2012 | hide | past | web | favorite | 81 comments

Live by the sword, die by the sword. I don't feel bad for Microsoft. It's just a testament that a patent war helps no one, not even the companies with a lot of patents that were the aggressors. In the end it's just mutual destruction.

I mean, Microsoft even went after companies to pay them royalties for ChromeOS...really, Microsoft?! I hope Motorola does the same to them now and asks for royalties for Windows 7. Something tells me they'll get a lot more for it.

Is it just me who finds these little spats between huge companies a little tedious? It doesn't affect my life, or my work, if Microsoft or Adobe or Apple takes Google or Motorola or Samsung to court for another expensive round of willy-waving.

I find it incredibly hard to want to cheer for any of these organisations, or get behind any of this stuff. These are just big, faceless corporations, each the same as the next, when it comes down to it. It's a bit like supporting professional sports teams, I guess.

Well, I like Xbox and Windows 7, and have only had a bad experience with Motorola.

Even so, the optimist in me is really happy about this. The reasoning is that if stuff gets screwed up enough, really having stuff messed up, then something might give and things might get better. Imagine a wonderfully chaotic future where iPads can't be sold one week, Xboxes another, and so on. It'd certainly further help illustrate the absurdity and innovation-limiting inherent in patents.

Realistically, I know it probably won't amount to much. Motorola and Microsoft will fight, come to some settlement, and the world will be worse off with yet another precedent set for legal abuse instead of actual competition.

Things such as this ultimately prevent small medium company from entering the market. The wall is getting higher and higher.

I guess the fact that Google put them up to it as retaliation for the fact that MS did the exact same thing to them is lost on this thread.

Did you know Microsoft makes more money licensing Android to Google then it does selling windows phones? Yeah payback is a bitch. Its ok thread goers, lets continue ignoring the real issue here and side with one of the largest patent trolls: MS.

My "take-away" from all this is that, if this can affect Microsoft so profoundly, how much more damage could be done to startups and small businesses in the technology arena? Most of them couldn't afford the fees to start the legal process, let alone pay for a protracted fight on obscure areas of copyright.

It could actually kill a lot of them. Patents are just fine as long as they are used defesivly. If they are not they can ruin everything.

Some effects I can imagine:

- Potential competitors aren't bought but sued to death.

- It could be harder to get founding if your situation is not sure, investors could loose their money

Consequence will be that start-ups will become more expensive again...

> Patents are just fine as long as they are used defesivly

Not really. Good patents are fine, but in order to use a patent defensively, you'll have to defend against something, most likely the abuse of an actual patent (be it a good one or not).

And it's certainly sweet to see Microsoft tasting its own poison. They have extorted just about every Android set maker (or Linux embedder) with a secret list of patents they paid Barnes & Noble US$ 300 million to keep secret.

BTW, this seems to be the soft spot of their armor - future litigants should press hard for the list to be made public. Microsoft will settle before risking exposing a weak hand.

If patents are only good if used defensively (because someone else threatens you with a patent infringement claim) then this is similar to having no patents at all. The difference is that if you abolish patents, patentable aspects of a product will become trade secrets rather than shared in a patent filing.

Take a look at Nest... it might very well be the nice high impenetrable barrier that $megacorps use to insulate themselves from disruptive challenges.

It might be tedious because you don't live in Germany. For me, the potential for major products used by millions of people to be banned seems quite important.

To make it more relevant, imagine that a major consumer product might be totally banned from sale in your country on the basis of a patent lawsuit. Imagine that, say, the browser you use, or the phone you were hoping to buy, was suddenly banned.

That would presumably affect your life, right?

Not really. I'd just use another product. I'm not so attached to Chrome, or Android, or iPhone, or any other tech product that I couldn't switch.

And aside from that, none of these 'bans' will ever come to pass--they're just lawyers flexing various muscles.

When I grew up my dad wanted me to be a business man. When my kid grows up I want him to be a patent troll.

When I was young the money was in innovation. Now the money is in stifling it.

I agree though. Tedious describes this perfectly.

I love this quote from The Pirate Bay blog, probably paraphrased from a proverb or something:

      In this year of the storm, the winners will build 
      windmills and the losers will raise shelters.
The world will keep on turning and innovators will find ways around any problems raised by the current laws. Either that, or our governments will start getting overthrown again.

Personally I wouldn't want my son to be a patent troll, simply because this is an artifact of the modern world, which can change in the blink of an eye, leaving my son with no occupation. However, the constant truth is that people creating value have always earned enough money to keep them satisfied.

And why do these bans generally happen in Germany?

Maybe a favorable climate in which to sue. I know there is a part of Texas that patent trolls like to bring their suits in due to higher likelihood of the defendant getting screwed. I'm pretty sure it's the same one in which Msft got hammered over their Office/XML patents.

? This is the first time I ever heard of a German court involved. 90% cases have been in East-Texas so far.

Tedious, and expensive.

Between the pseudo-bubble valuations and all the IP challenges, in 25 years we're going to look back at this time with disgust at all the wasted resources.

"It doesn't affect my life, or my work"

Unless you buy their products I guess. Lawyers are expensive and I assume that expensive eventually filters down to their customers. I wonder, for example, how much, if anything, consumers have paid for the 'Android tax' Microsoft has been applying to various companies.

The lawers are happy about it. The law we have are just made in a way that it is still worth fighting instead of producing. I am not an expert on the law in general but I know that a lot could be much easier.

"It follows a ruling that Microsoft had infringed two patents necessary to offer H.264 video coding and playback."

Oh the irony. Wasn't the MPEG LA consortium supposed to guarantee protection against that kind of attack ?

Any details on the infringing patents ?

While I don't know the patents, the MPEG-LA can only protect against the patents that are committed to that specific portfolio.

Even if Motorola are a member of the MPEG-LA, if they are suing for a patent that they have not committed to the MPEG-LA, then Microsoft have no protection.

About the worst that could happen is Motorola get kicked out of MPEG-LA.

I don't think getting kicked out of MPEG-LA is so easy. If Motorola is a member and does have patents committed to their pool, wouldn't a kick mean that those patents that are submitted would no longer be part of the package? If that's true, then Motorola would have even more bullets.

This only goes to show how nobody is protected from patents, even if you're careful about buying licenses.


Motorola does not seem to be a licensor of H.264.

Man, this is a fucked up world.

So Motorola Mobility brought the matter to German courts, who agreed to ban those products, but "a US court has banned Motorola from enforcing the action until it considers the matter next week.".

How is a ban Motorola has solicited under German law under the jurisdiction of a US court, or am I misunderstanding this?

That was for a US ruling on same patents. It happened before this.


Makes no sense to me either but since Motorola is a US company as well, MS might have found an opening.

Banning Windows sales in entire Germany is no child's game, if enforced and then reversed Motorola might go bankrupt. Simple as that.

Google owns Motorola now.

Not yet it doesn't. They're still working on the final elements of the deal (approval in China I believe), though it will almost certainly go through before any such liability might become due.

And for clarity, it's Motorola Mobility they're buying, not all of Motorola.

It's no news that German courts are favored for patent infringements, because they mostly play well.

I've even seen a reportage about this topic, that covers why large companies fight patent lowsuits in Germany. It's because Germany has understood how to capitalize on this "new market".

Tax route optimizations, patent-pool leverage, secret partnership agreements, HR Capital squeezers, talent headhunters, innovation buyout..is that out of an "imperators guide to the 21st century"?

Is this based on actual facts or did you just make that up?

Okay, someone please explain this to me: I thought a few years back we had all this uproar about the EU wanting to introduce patentability of software. They eventually backed down, if I remember correctly. Now a German court rules that Windows 7, a piece of software, infringes upon a patent. What?

Links to patents? I haven't been able to find them.

I notice that people are very quick to attack Microsoft here, despite the fact that a great many parties have been touting h.264 as a standard to adopt, and acting like it wasn't a morass of patents and lawsuits waiting to happen. Granted, one of those parties was Microsoft.

Depending on what's in the patents at issue, maybe there is a lesson here about making sure that the standards we approve of aren't encumbered by patents.

Thats the patent version of what would have happened if the US and USSR had started throwing nukes around...

I always thought patents were there to protect against such attacks, a balance of awe and destruction. But who the heck was stupid enough to start that? Seriously, replacing development and business operations by law suites only will get you so far.

Maybe I should switch careers and become a patent lawyer!

> Thats the patent version of what would have happened if the US and USSR had started throwing nukes around...

Not even remotely. The damage so far is measured in legal expenses (a few million dollars, chump change), and headlines. They can stop at any second, and can in fact reach some licensing agreement that would make both stronger (MS because their are now immune, Motorola because they can go on to other fish with the precedent that "Microsoft settled because our patents are so strong. You want to fight with us?").

When you start throwing nukes around, you cannot fix the damage so quickly, and you definitely don't come out stronger.

> Seriously, replacing development and business operations by law suites only will get you so far.

far enough for 99% of the companies out there, unfortunately. They are in the business for the money, not technology advancement, or the betterment of mankind.

> Maybe I should switch careers and become a patent lawyer!

Selling your own soul can produce good income, but potentially comes with the hefty price tag of losing your soul.

Failing companies have no reason to avoid the patent wars.

Reminds me of grain/food aid given to the USSR during hard times. Even the Cold War US was afraid of what could happen with weapons of mass destruction during desperate times.

Microsoft may not be what it once was but they're a big enough beast that I'd be thinking twice about this sort of move.

But that's kind of micro level stuff, at the macro level it's just another volley in the on-going patent wars where it seems that lawyers will win and the companies and the consumers lose.

Common sense says it will end soon but it really doesn't feel like that's happening.

Google and Microsoft are at war since Eric Schmidt became CEO, so there are two beasts fighting anyway. Microsoft broke the gentleman's agreement by using software patents to cripple Android.

What gentleman's agreement ? Companies have always sued each other over patents since they were introduced.

What IS new is abusing the principles of FRAND that underpins every standard today. I mean what is going to happen if some 2-bit patent holder of the WiFi standard decides to hold everyone to ransom and demand $1000 per patent license ?

Google could not be more evil if they tried right now.

     Companies have always sued each other over patents 
     since they were introduced.
That's bullshit, as software companies suing each other is a new phenomenon. Otherwise you would have heard of IBM suing Microsoft and Oracle into oblivion from the 90'ties.

What really started this trend was Apple entering the mobile space with the iPhone, suing and getting sued by others. God forbid other companies following this trend. Considering how Nokia is doing these days, imagine if they started suing everybody else with their huge GSM-related portfolio. Or IBM, which has such a huge portfolio that it most likely touches on everything technology-related.

We are really heading heads on to a full war in the software industry that will cripple innovation, with the winners being those that produce less products then everybody else.

Apple didn't start this. In my opinion, Amazon started in, in 1999, when they sued Barnes and Noble over the prototypical stupid software patent: one click buying.

It says something that Microsoft is the only company that has been sued so far. May be Apple will be next, but these are the companies that initiate patent wars against their competitors. Now that the companies are hitting back, you think it is a bad precedent ? I'd be more worried if they start doing it to smaller companies than giants like these.

The "gentlemen"'s agreement is that big corps, via things like FRAND and patent thickets insulate themselves from competition from startups and other outsiders (e.g. Apple entering the mobile phone world, Linux or Android stepping on Microsoft's toes) but don't enforce those patents against the other incumbents, that's why they never bothered to actually nail down what their rights and obligations were.

FRAND isn't really anything to do with a gentleman's agreement, it's a basis for licensing patents required for standards.

The ND part of FRAND (non-descriminatory) actually means that start ups should be treated no differently.

Yes, and the FR means it should be "Fair" and "Reasonable" but if we just believed the names people gave things then who could be against the PATRIOT act, for example. In reality you need to look at what actually gets put into the laws and licences, not just the name.

To give just one example H.264 is FRAND, yet you pay a fee for broadcast television, and you pay a fee for pay TV on the internet over 12 minutes of length, but you don't pay fees for free video on the web (but until recently they weren't guaranteeing that would continue). Why?

Because the TV market is locked-in and they have no hope of switching away from MPEG/H.264 but in the Web market it was much more likely for an upstart like Flash's VP6 or Google's VP8 to compete, so they drop the price. What's non-discriminatory about that? They've structured the licence fees precisely to undermine competition in specific markets. (I believe the 12 minute minimum for charging is because the online porn industry would have switched away if that allowance wasn't made, but I don't have a source for that.)

Furthermore, they put a cap on fees so that big corps only pay a max per year, which means everyone else pays a higher marginal cost per device or unit.

Finally, their business model is incompatible with open-source software and often awkward even for proprietary software distributed cheap or for free. Given all that (and there's more of the same) how can you say FRAND is non-discriminatory?

And there's far too much idealizing of "standards" in this thread. Standards themselves, though often started to avoid horrible vendor lock-in have been thoroughly gamed for a long time, and again often serve the puproses of the usual large incumbents over the end-users or society's needs.

Call me a pessimist, but I don't see IP law in general ever getting any better.

Call me an optimist. But I think some time soon there will be such a ridiculous lawsuit, that even politicians/the electorate will see that it's time to review IP laws.

I think the problem is that all the companies involved (Apple, Microsoft, Google etc) are American; if the products of one American company are banned somewhere, another American company will invariably benefit. I think if an American companies products were being banned in the US to the benefit of a non-US company, only then will US law-makers start raising their eyebrows.

I'm not necessarily thinking that the laws will change, just that we'll go back to the situation of a few years ago where enforcement was a little less vigorous.

Merely the potential for dumb rather than the ongoing implementation of dumb.

I love this. This is what you get for betting on patent encumbered formats. Maybe WebM wasn't such a bad idea after all...

If you think you can make a video codec that isn't encumbered by patents I've got a bridge I can sell you.

It is impossible for WebM to be free from patent violations.

In software, everything you do will run afoul of some patent you've never heard of that, in the opinion of the court, describes an aspect of what you've done.

The huge problem with software patents is they describe in hand-wavy terms the "technology" without actually being specific enough mean anything. The patent for "embedding hypermedia documents" that stung Microsoft for several hundred million dollars is so uselessly vague it may as well have been pulled from a science fiction novel.

Allowing a patent without a single line of source code or even proof of a working implementation is not helping anyone.

You don't get it do you.

EVERY company in the industry has now been given carte blanche to completely ignore FRAND principles and sue everyone after a standard has been adopted.

This is the worst precedent to hit the industry in a long time.

It's not clear that Motorola didn't offer "fair, reasonable and non-discriminatory terms" for licensing. Microsoft claims licensing would cost them $4bn/year; Motorola disputes this claim.

Also, who is to say that $4bn/year isn't "fair" when video is an essential part of Microsofts products?

Don't get me wrong, I hate patents as much as everyone else here, but I still think this lawsuit poses as a very nice example of why free video/audio codecs are important.

We had the same shit with LZW/GIF patents a decade earlier and all the warnings were ignored and laughed at ("Nerds with tinfoil hats" ~Gruber). Microsoft (and Apple) doesn't deserve better for their arrogant stance on this issue.

> Also, who is to say that $4bn/year isn't "fair" when video is an essential part of Microsofts products?

Anyone who's sane. $4bn/year? That's nuts. It would be nuts even if that was the licensing fees for complete H.264 coverage. However, it's not complete coverage, because there are hundreds of patents in the H.264 pool. http://www.mpegla.com/main/programs/avc/Documents/avc-att1.p...

It's not clear to me whether these two particular patents are in the pool or not. I assume not, because otherwise Microsoft would have a license for them through MPEG-LA already. However, given that Motorola was involved in the creation of H.264, it seems that their patent assertions here might be illegal. Some of Qualcomm's patents were apparently thrown out because they didn't disclose them properly and include them in the patent pool. http://en.wikipedia.org/wiki/H.264#Patent_licensing

Also, who is to say that $4bn/year isn't "fair" when video is an essential part of Microsofts products?

All the other H.264 patents have been voluntarily licensed for ~$5M/year, so to reach $4B Moto would have to argue that its patents are worth one thousand times as much as all the others combined.

Another way to look at it: There are thousands of patents that read on Windows. If each one cost $4B/year, patent license fees would exceed total Windows revenue.

>It's not clear that Motorola didn't offer "fair, reasonable and non-discriminatory terms" for licensing. Microsoft claims licensing would cost them $4bn/year; Motorola disputes this claim.

It's not clear why Motorola should be able to do in the first place. If Motorola's patents cover encoding and decoding of H.264, those patents should be in MPEG LA's pool. However, Motorola is not listed as licensor on the website(http://www.mpegla.com/main/programs/AVC/Pages/Licensors.aspx ). Since the pool covers all the essential patents related to encoding and decoding H.264, why isn't Motorola included in the list?

Nobody is forced to join the MPEG LA, in fact their behavior is pretty much illegal. They are explicitly banned to claim, assume or declare that it is impossible to encode/decode videos without a license from them. Which is pretty much what they do.

That's tangential to the problem at hand. MPEG LA's entire purpose for existing is to be a one stop shop for the essential H.264 codec patents. So instead of going to MS, Apple, Samsung, Hitachi, etc. individually, you just go to MPEG LA, get a license, then go on with your life.

Motorola is not on that list, and have not granted their patents. However, since they're asserting that it covers the encoding and decoding of H.264, it's questionable whether or not they can assert them against H.264 codecs. In fact, the US courts have invalidated patents that were not declared to the pool before. See dpark's post: http://news.ycombinator.com/item?id=3919324

Thanks for rephrasing.

Not if it leads to patent-backed FRAND being abandoned for something better, like allowing standards to be freely implemented by anyone at no cost regardless of who claims patents on them and then standards committees can spend their time on engineering not lawyering, politics and FUD.

I am a bit unaware of the situation, but didnt this lawsuit happen after MS sued Motorola over android ?

Yes indeed: http://www.mobiledia.com/news/104161.html

Microsoft Wants to Ban Motorola Phones in U.S.

"Motorola is infringing our patents and we are confident that the ITC will rule in our favor," said David Howard, Microsoft's deputy general counsel for litigation.

"We are vigorously defending ourselves against Microsoft's patent attack business strategy," said Motorola in a responding statement. "We have also brought legal actions of our own in the U.S. and in Europe to address Microsoft's large scale of infringement of Motorola Mobility's patents."

He who lives by the sword...

What's actually a bit worrying about this, is that the scourge of sleazy greed-lawsuits has spread to Europe. It used to be a purely American phenomenon.

It will be interesting to see what happens when Microsoft uninstalls Windows 7 from all those machines. How is this recall going to be done?!?

The irony is that they're able to stop all their security updates, even self-destroy with their home-calling mechanisms.

I'd love it if Motorola went all-in about it.

I bet you would love it. But think about it. Motorola can now extort ridiculous royalties from every company that provides:

DVD Players, Projectors, Video Cameras, Digital Cameras, Smartphones, Tablets, Operating Systems, Browsers, Portable Media Players, Consoles, TVs, Media Centers, PVRs.

The current situation is a joke. No small player can get above the radar at basically anything software or else they risk being sued out of business. Big players calculate their movements because they all have a big portfolio and they reach agreements. Most people cannot resort to this.

Hopefully a clusterfuck between two industry giants will cause a fundamental change in the rules of the game.

I wish all the devices you mentioned would be outlawed overnight to force a decided reaction. I'm willing to go full OSS and open formats, I'm mostly there anyway. Remember static GIFs? Here's hoping they do enforce all these patents to the fullest.

Yes! And they should!

The reply people on HN have been giving about these issues is "Don't hate the players, hate the game". I say it's a false dichotomy. You can hate both the game and the players.

But I love players who, like Motorola is doing here, demonstrate that and make everyone hate the game.

There is no recall, just a sales ban. Actually there is no sales ban yet either - Motorola has been prohibited from enforcing it. This is non-news, in two weeks some solution will be found and very few people will ever know or care about this issue.

Maybe only with such actions, the patent law finally gets reformed.

>Microsoft moved its European software distribution centre from Germany to the Netherlands last month ahead of the verdict to minimise potential disruption.

The law doesn't really apply to these software giants, they'll always find a way around it.

You see MS obeying the law, causing considerable disruption to their setup (changing a distribution centre from one country to another is pretty big move) and you say that they are "finding a way around it"?

Isn't that exactly what MS are doing by moving their operations?

"Finding a way around it" does not imply they are avoiding any cost in doing so.

That's to make sure that the verdict only affects Germany. With their European distribution center in Germany, they couldn't sell in any European country. With this reorganization, they just can't sell in Germany (and any imports will be destroyed by customs if found).

(it's also a not-so-subtle hints to politicians, that Microsoft would prefer to have a special exception to the usual rules, otherwise JOBS ARE AT RISK!!!11)

It like with poletics at one point you just have to laught because nothing makes any sence anymore. It just ...

Its not this case but the general state of these laws.

> Microsoft has said that if it met all of Motorola's demands it would face an annual bill of $4bn (£2.5bn).

Eh? Is this their defence?

Motorola wins. Germans lose :-(


I really have nothing else to say.


again, this is probably a kick back from Motorola for Microsoft going after them[1]. You can't expect to be a bully against a company that has been a good arsenal of patents (Google bought them for this), and not expect to be sued back.

Bottom line: Microsoft was being a troll on Android. Motorola kicked some ass by blocking their two big products in probably their second largest market.

[1] http://news.cnet.com/8301-13860_3-20018305-56.html

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