Joff Wild - Horacio Gutierrez becomes Microsoft GC in move that signals company's continuing patent focus

Joff Wild of IAM reports on Microsoft's prowess in patent licensing: Horacio Gutierrez becomes Microsoft GC in move that signals company's continuing patent focus.

Copyright © 2015 Robert Moll. All rights reserved.

Microsoft Making $2 Billion Annually From Android Patent Royalties

The Business Insider reports Microsoft Is Making An Astonishing $2 Billion Per Year From Android Patent Royalties. Even more amazing is the analyst's estimated 95% margins on this revenue stream. Is this right and is this fruit from Bill Gates' decision to hire x-IBM patent licensing guru Marshall Phelps? Thanks to Suzie Lipton-Moll for passing this article my way tonight.

Copyright © 2013 Robert Moll. All rights reserved.

Microsoft Acquisition of Nokia - It is Better to License Than Sell the Patents

Today, the big tech news was Microsoft's acquisition of Nokia's handset business for $5B. Unlike Google's acquisition of Motorola Mobility, Nokia did not sell its patents. Instead, Nokia granted Microsoft a 10-year license for $1.6B. In Reuters, Dan Levine explains why that makes sense in Why Nokia didn't sell its patents to Microsoft.

Copyright © 2013 Robert Moll. All rights reserved.

Bill Gates - American Inventor

Many would credit Steve Wozniak and Steve Jobs with bringing desktop computers to the world, but Bill Gates also deserves credit in establishing the PC industry. He has been such a fixture that I was initially surprised when he stepped back from his full-time role at Microsoft to establish the Bill and Melinda Gates Foundation. Sure it might help solve pressing issues like malaria, tuberculosis, and clean water in developing countries, but I was concerned if Microsoft would be the same after he stepped away in 2006. Well history shows when he resigned as Microsoft's CEO in 1999 Microsoft was a $600 billion company and today it is $270 billion. But then I realized who can criticize his desire to help others? Certainly it appears to be the right decision since the Gates Foundation has made real progress in addressing these problems.

Less known is Mr. Gates has also been inventor since leaving his day-to-day role at Microsoft, mostly working with friends at Intellectual Ventures. I find that hard to criticize, but one article has spun this as Bill Gates still helping known patent trolls obtain more patents. Does anyone think he is interested in helping a patent troll get more patents in his "spare" time? Couldn't we give him the benefit of a doubt that he is engaging in creative thinking on how to help the world in this context? For some the answer is yes and no, because they see every bit of news as supporting their presumptions.

Copyright © 2013 Robert Moll. All rights reserved.

Microsoft v. Motorola - Judge Robart's FRAND Rate Setting Decision & Commentators

Last week Judge Robart of the US District Court for the Western District of Washington released Findings of Facts and Conclusions of Law setting the FRAND rate for Microsoft's infringement of two Motorola Mobility patents. The decision highlights the court's authority in setting FRAND royalty rates.

FOSS Patents and Groklaw have extensively commented on Judge Robart's 207-page findings: Mr. Mueller of FOSS Patents chortles Google lost: A closer look at the 207-page, landmark FRAND rate-setting decision in Microsoft v. Motorola. I don't share his joy, but agree Microsoft appears to have won given Motorola initially sought $4 billion and was awarded less than $1.8 million per year.

In a First, Seattle Judge Sets RAND Rate in MS v. Motorola, Groklaw denies the loss arguing that Judge Robart is in Microsoft's home court in Seattle and favors Microsoft in setting the RAND rate for a couple of Motorola SEPs, followed Motorola Mobility's methodology, and feels confident the decision will be appealed.

The detailed methodology will take time to study, but I will comment that in my observation Federal district court judges are more honorable than to simply rule in favor of the local company. And arguing the local party had the home court advantage when your company loses won't persuade many judges to reverse on appeal. A stronger argument may be the judge forced Motorola to accept rates in patent pools it hasn't joined instead of following the relevant standard's body negotiation structure.

Although I appreciate Groklaw's coverage of IP issues, its article stretches a long way in an attempt to rebut Florian Mueller stating it would take 7,000 years at this RAND rate for Google to recoup its price paid for the Motorola patents (Note the SEC papers do not break out the patents separate from the technology so talking about the price paid for the Motorola patents is fiction). Referring back to Groklaw, PJ notes: "Google isn't in the 'let's sue and get a lot of money from royalties on patents' business. That's more a Microsoft strategy. Probably because no one wants Microsoft's products. Google does make money, though, buckets of it, because people like Google's products. I believe that would indicate that Google knows how to make money. Nor did they, or anyone but Florian, ever imagine that they'd get repaid the purchase price by royalties on only two of the many patents that came with the Motorola purchase. That wasn't the plan. It was, from what I read, defensive in nature."

Sure Google makes great products and lots of money. And I agree that the fate of these two patents is not indicative of the strength of the Motorola portfolio, but no one wants Microsoft's products? Most everyone I know uses Apple, Google, and Microsoft products. Most have gotten value and had problems with each company's products at times. To say probably no one wants Microsoft products and suggest its strategy is to make up for it by licensing patents is not persuasive. How did Bill Gates gain and maintain his wealth? Was it by licensing patents or selling products? Beside this case is not about Microsoft's patent licensing; it's about Google's patent licensing effort.

Copyright © 2013 Robert Moll. All rights reserved.

Microsoft Lists All Patents on the Web - The Knowledge Trap

On March 28, 2013, Brad Smith, Microsoft's GC and Executive VP, Legal and Corporate Affairs, mentioned in Enhancing Transparency: Putting Microsoft's Patents on the Web that Microsoft has published information (e.g., patent number, title, and country) regarding all Microsoft owned patents on the Web. The actual content of the patent will be available through the US patent databases (e.g., USPTO, Google Patent Search, and Free Patents Online).

From Mr. Smith's post: "Today, we launched a “Patent Tracker” tool that provides a list of all of the patents Microsoft owns. Through the Patent Tracker, users can obtain the list in two forms: (1) an online list that is searchable by patent number, patent title, country and whether the patent is held by Microsoft or a subsidiary, and (2) a CSV file containing the entire list that is downloadable and searchable in Microsoft Excel. We took this approach so that people can come to our site if they want to run a quick search, but can also download the information if they want to perform deeper analysis. Above is a video providing additional information about the need for transparency and how to use the Patent Tracker.

We take this step today because we believe that all stakeholders of the U.S. patent system – private companies, the U.S. Patent and Trademark Office, Congress and the courts – share responsibility for taking steps to improve its operation. Sensible improvements to the patent system, such as increasing transparency on patent ownership, will yield tangible outcomes that enhance American competitiveness, create jobs and foster growth in nearly every sector of the U.S. economy.

We urge other companies to join us in making available information about which patents they own. By doing so, they will help increase transparency, facilitate licensing, and help ensure that the patent system continues to fulfill its role in promoting and encouraging innovation."

Joff Wild of Intellectual Asset Management states Microsoft's aim to bring greater transparency to their holdings should be welcomed. And in my opinion, downloading a list with numbers, titles, and countries of 41,000 patents shouldn't translate into being imputed with knowledge of any given patent. However, what's logically next? If you review a relevant patent on the list as it may generate the need for a patent license or a opinion that the patent is not infringed or invalid. And if infringement is later found and the opinion is held incompetent, that knowledge increases the risk of willful infringement and  increased damages. This is suggested since In re Seagate Technology held establishing willful infringement requires the patent owner show (1) the infringer acted despite an objectively high likelihood its action constituted infringement; and (2) the risk was known or so obvious it should have been known.

Copyright © 2013 Robert Moll. All rights reserved.

Software Patent Debate - BSA and National Association of Manufacturers Capitol Hill Briefing on February 21, 2013

On February 21, 2013, a group of leading executives and lawyers came together at a Capitol Hall briefing event co-hosted by the BSA | The Software Alliance and National Association of Manufacturers to talk about software patents. The software industry is vital to the growth of the U.S. economy so how we protect software innovation has become important.

Among those attending this event: panel discussion moderator Robert Stoll,a  law firm partner and former Commissioner of Patents, panelists Dorian Daley, Senior VP, GC and Secretary of Oracle, Brad Smith, GC and Executive VP of Microsoft, Neil Abrams, VP and Assistant GC of IBM, David Kahn, CEO of Covia Labs, and Thomas Lange, Director of Corporate RD, Modeling and Simulation for Procter & Gamble.

This briefing is welcome because the anti-software patent camp garners lots of press that drowns out the views of those in favor of software patents. They speak of problems (some imagined) engendered by software patents and patent trolls leading one to conclude let's just abolish them. Problem solved, right?

The Capitol Hall briefing lets the public consider the benefits. The major companies are well aware. That's why Amazon, Apple, Facebook, Google, IBM Microsoft, and Oracle have heavily invested in software patents. Is it just "mutually assured destruction?" Some tell me this is less the case today, and the current problem is patent trolls. If so, the cure should be narrowly aimed at abusive patent trolls not at software patents. Otherwise, you reduce or eliminate protection large and small operating companies require to protect software in the USA.

The value of software patents isn't lacking. What's lacking is a full discussion in the press. Part of the USA's strength is it believes in a marketplace of ideas and the public's ability to sort out what is the best ideas. I am comfortable with America's ability to make good choices if presented with both sides. So it makes sense for the public to hear from leaders how software patents have an important role in fostering software innovation, have encouraged investment in startups, and have proposals for improving the U.S. patent system. Here are some related articles on BSA's views:

Microsoft's Brad Smith: The Patent System: Fix What's Broken, Don't Break What's Working

BSA President & CEO Robert Holleyman: Clear Thinking on Software Patents

Copyright © 2013 Robert Moll. All rights reserved.

Microsoft v. Motorola Mobility - Google's Motorola Standard Essential Patents Not Entitled to Injunction or Hefty Royalty Rate

Today, in Microsoft v. Motorola Mobility, the federal district court judge granted Microsoft's summary judgment motion that Motorola Mobility's standard essential patents (SEP) are not entitled to injunctive relief and will be subject to FRAND. We may see a consensus that we cannot have patent hold ups on SEPs since that gives SEP owners too much negotiating leverage against competitors.

I am a little surprised at how this case evolved. Google's Motorola Mobility would not sign up under  Microsoft's patent licensing program despite the vast majority of Android makers doing so. Second, after Motorola Mobility was sued it didn't think maybe it should settle. Instead it counterclaims that Microsoft XBox infringed patents essential to the H.264 (video codec) or IEEE 802.11 (WiFI, or WLAN) standards. We were talking about my Android, but let's talk about your XBox? Then Motorola insists on injunctive relief and unreasonably high royalty rates on those SEPs?

Despite this Groklaw suggests the judge's decision is based on local bias: Surprise Surprise ... Seattle Judge Grants MS Motion, Bans Injunctions for Motorola's RAND Patents

Groklaw argues the Seattle judge is in Microsoft's home court and handed out a predictable victory to Microsoft based on a sealed motion (i.e., who knows what) that is likely to be appealed. In my opinion, the judge is being unfairly impugned. Motorola lost because it pushed beyond the outer limits of remedies available for SEPs.

Also see other reviews of this decision such as Joe Mullin' In a blow to Android, judge says Moto patents can't get injunctions - Motorola can't use standard-based patents to enjoin Microsoft's Xbox and FOSS Patents' Google's Motorola loses a summary judgment decision after Microsoft FRAND trial.

Copyright © 2012 Robert Moll. All rights reserved.

Surfcast Sues Microsoft Claiming Windows 8 and Windows Phone Infringe US Patent

Yesterday, Surfcast, Inc. announced it sued Microsoft claiming Windows 8 and Windows Phone infringe U.S. Patent No. 6,724,403 B1

For details see the CNET article: Microsoft sued over Windows Live Tiles

For more information about Surfcast see the following pages:
(1) Founders and directors with former / current affiliations;
(2) Three other issued US patents and law firms who prepared and/or prosecuted them; and
(3) Press release announcing the patent infringement suit filed in Maine dated October 30, 2012.

Copyright © 2012 Robert Moll. All rights reserved.

Eolas Web Browser Plug-in Patent Falls Short?

Joe Mullin's article Patent troll takes last shot at owning "interactive web," but falls short reminds us high stakes patent litigation often involves multiple defendants and can stretch on for years. Mr. Mullin's article is about the Eolas patent involving browser plug-ins asserted against Microsoft in 1999 and later many other tech companies. The subject matter is described in U.S. Patent Nos. 7,599,985 and 5,838,906.

I tuned into the case after a federal court awarded Eolas and the University of California $565 million for Microsoft's browsers infringement of the Eolas patent in 2004. I was hunting for a topic at the time, because U.C. Berkeley had invited me to speak in exchange for three nights at the Lair of the Bear family camp. Since the University of California stood to gain major money, and it involved the Web and Microsoft, the Eolas case sounded like a good topic. The University of California agreed and gave us a "speaker's cabin" with a faded tie dyed sheet door.

Oh well, the food was excellent, we met lots of great people, and to my surprise many showed up to hear me talk about patents at night. The question asked repeatedly was how much did the U.C. Regents stand to gain? 25% of $565 million! Everybody seemed happy to hear this.

Afterward Microsoft fought hard to overturn the judgment eventually settling with Eolas. The U.C. Regents part was reduced to a little over $30 million. After Eolas sued a number of tech companies which recently led to the patent being held invalid despite previously overcoming invalidity challenges from Microsoft in the courts and the PTO.

If you are interested in the Microsoft case, here's a link to my power point slides: Microsoft ordered to pay $565 million for infringing Eolas & UC's web browser patent. By Robert Moll Patent Planet July 11-13, 2004.

Copyright © 2012 Robert Moll. All rights reserved.

Google Complains Microsoft and Nokia Using Patent Trolls to Attack Android

Tonight, CNET has an interesting article Google blasts Microsoft, Nokia for hiding behind patent trolls that discusses Google's submission of reports to the FTC and European Commission that claim Microsoft and Nokia are acting anticompetitively by using patent trolls to wage litigation against companies that might otherwise adopt the Android operating system. The reports are private to Google and the agencies.

Thanks again to Alan Cooper for sending the article my way.

Copyright © 2012 Robert Moll. All rights reserved.