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Authored by: ankylosaurus on Thursday, November 15 2012 @ 11:51 PM EST |
It's helpful to indicate the nature of the error at least in the title of the
comment. (Mitsake -> Corrected, for example.)
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The Dinosaur with a Club at the End of its Tail[ Reply to This | # ]
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Authored by: ankylosaurus on Thursday, November 15 2012 @ 11:54 PM EST |
Discussions about matters not related to the main article.
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The Dinosaur with a Club at the End of its Tail[ Reply to This | # ]
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Authored by: artp on Friday, November 16 2012 @ 12:17 AM EST |
URL, please!
Comments, too. ;-)
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Userfriendly on WGA server outage:
When you're chained to an oar you don't think you should go down when the galley
sinks ?[ Reply to This | # ]
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Authored by: artp on Friday, November 16 2012 @ 12:19 AM EST |
Or would that be On Topic?
I will leave that question as an exercise for the student, as
it is intuitively obvious to the most casual observer. :-)
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Userfriendly on WGA server outage:
When you're chained to an oar you don't think you should go down when the galley
sinks ?[ Reply to This | # ]
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Authored by: Anonymous on Friday, November 16 2012 @ 12:21 AM EST |
CCMP is the security protocol for WPA2, so witness kind of dodged the question.
Looks like the lawyers didn't know that.[ Reply to This | # ]
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Authored by: Anonymous on Friday, November 16 2012 @ 02:57 AM EST |
I ask because some technology "blogger/expert", who I
won't link to here,
refers to the Apple vs.
Motorola case
as having been
cancelled, not
dismissed. Is he playing with semantics?[ Reply to This | # ]
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Authored by: Anonymous on Friday, November 16 2012 @ 04:25 AM EST |
On to security patents. Motorola did not invent this technology.
Little or no benefits to Xbox for these patents.
...it's sometimes
fun to take statements out of context.[ Reply to This | # ]
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Authored by: Anonymous on Friday, November 16 2012 @ 04:39 AM EST |
"Not a successful product by any stretch"
Errmmm, isn't that what MS were backing vs. Bluray?
[ Reply to This | # ]
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Authored by: Ian Al on Friday, November 16 2012 @ 06:45 AM EST |
PJ commented, previously, 'The judge views it that Microsoft is a third-party
beneficiary of the contract'. I racked my brains to remember SCO v. Novell and
recalled that the contract must be a meeting of minds between the parties. The
legal arguments during the trial were about just what that meeting of the minds
was and getting evidence of that. I thought I would review the original
contracts to see what light that shone on things.
I looked up a
Wikipedia definition of what a contract is according to the US legal
system:
What is a Contract?
A working definition of
Contract comes from the American Law Institute's Restatement 2nd:
§ 1. Contract Defined:
A contract is a promise or a set of
promises for the breach of which the law gives a remedy,
or the
performance of which the law in some way recognizes as a duty.
Another
definition comes from the Uniform Commercial Code (UCC), which specifically
covers contracts for "Goods" (instead of services):
§ 1-201(11)
[Revised § 1-201(11)]:
“Contract” means the total legal obligation
which results from the parties’
agreement as affected by this Act and any
other applicable rules of law.
Both of these definitions make clear
that not all promises or agreements are contracts. The promises or agreements
that are contracts are the ones the legal system will enforce. That definition
certainly appears circular: which ones will our legal system
enforce?
That enforcement mechanism kicks in when a contract has been
formed and it has been breached. The legal system is then asked to supply a
remedy.
The IEEE is a professional association for electrical
engineers. It does allow companies to nominate professional engineers for the
standards setting groups. However, the groups' stated objectives do not include
the setting of legal or commercial relationships between companies.
Their policy for standards essential patents is:If the IEEE learns
that an IEEE standard or a proposed IEEE standard may require the use of an
essential patent claim, the IEEE requires the patent holder to either state that
it is not aware of any patents relevant to the IEEE standard or to provide the
IEEE with a Letter of Assurance. Any such Letter of Assurance must include
either
(1) a disclaimer to the effect that the patent holder will not
enforce the “Essential Patent Claims,” or
(2):
[a] statement that a
license for a compliant implementation of the standard will be made available to
an unrestricted number of applicants on a worldwide basis without compensation
or under reasonable rates, with reasonable terms and conditions that are
demonstrably free of any unfair discrimination. . . .
In similar
circumstances, the ITU asks the patent holder to make a declaration that they
will negotiate
patent licenses under FRAND terms. The declaration is not
restricted to a particular country or a particular legal
jurisdiction.
My initial thought is that neither the ITU declaration
nor the IEEE Letter of Assurance constitute a contract in US law. As noted in
the quote, above, 'Not all promises or agreements are contracts'. The Letters of
Assurance and the ITU Declarations are promises and not contracts because they
do not include a legal meeting of the minds specifying the terms, considerations
and legal obligations and do not apply to an agreed legal body of
law.
The IEEE Letter of Assurance is also to apply ' to an unrestricted
number of applicants on a worldwide basis without compensation or under
reasonable rates, with reasonable terms and conditions that are demonstrably
free of any unfair discrimination'.
The Letter of Assurance
specifically calls for reasonable rates (consideration) and reasonable terms and
conditions that are not discriminatory. These are part of the legal obligations
of a contract and the parties to the contract are the patent owner and the
standard user. The IEEE is not a party to the contract called for in the Letter
of Assurance.
Let's assume, for the purpose of discussion, that the
Declaration and the Letter of Assurance were contractual agreements between the
ITU (a specialised agency of the U.N, and headquartered in Switzerland) and the
patent holder and the IEEE and the patent holder, respectively. Since both
organisations are non-commercial, then the broader contract definition would
apply:
A contract is a promise or a set of promises for the breach
of which the law gives a remedy, or the performance of which the law in some way
recognizes as a duty.
Neither contract cites the law against
which the contract can be tested. Both contracts apply worldwide. Further, most
jurisdictions do not have the concept of a legally binding third-party
beneficiary. Neither standards organisation can be assumed reasonably to have
set contract terms and conditions in a contract which apply in every legal
jurisdiction in the world. Further, the contract is unstated. The requirements
for declarations and letters of intent can only be pro-forma and not the final
agreed contract.
There is no start date or end date for the contract.
Can there be a contract let from the date of the letter or declaration for which
the consideration lasts in perpetuity? Do the letter or the declaration specify
which patents are covered (hint, it is every patent for the invention everywhere
in the world owned by that patent holder). You might remember the uproar in the
SCO v. Novell case about which copyrights the APA contractually transferred from
Novell to Santa Cruz. In that contract, they looked for legal text that
specified it. The rule was quoted that, in some US jurisdictions, the copyrights
to be transferred must be explicitly stated. Since there is no specific contract
text or oral contract commitments in the letters and declarations, then the
terms of the contract cannot be legally established.
If the letter and
the declaration are contracts, where are the patents specified?
In any
contract, the legal entities entering the contract must be specified. Where in
the declaration or the letter is this done? The organisations making the
declaration or writing the letter of assurance are not necessarily the legal
entities owning the patent(s) (since this is a world-wide issue). Are the letter
writers and declaration makers legally entitled to represent the patent owners
everywhere in the world in every legal jurisdiction in the world? Where is this
court's proof of that?
Finally, does the promise represent an actual
exchange of consideration? It cannot. The 'contract' can only be performed if
and when a third party requires to use the standard containing the patent
owner's invention. What consideration does the standards organisation and the
patent owner actually exchange under the contract? I don't think there is a
legally valid exchange of consideration.
I think that both Apple and
Microsoft are only potential third party beneficiaries of a potential
non-contract. The IEEE Letter of Assurance calls for 'a license for a compliant
implementation of the standard [to] be made available to an unrestricted number
of applicants on a worldwide basis under reasonable rates, with reasonable
terms and conditions that are demonstrably free of any unfair
discrimination'.
Have either Apple or Microsoft proven that they are
being discriminated against by being excluded from a compliant implementation of
an IEEE standard?
Why would the low licence fees for the other
essential patents in the standard that were set for purely business reasons to
monopolise the international standard within the US affect what a fair and
non-discriminatory rate should be for a patent owner who is not a business
partner?
--- Regards
Ian Al
Software Patents: It's the disclosed functions in the patent, stupid! [ Reply to This | # ]
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Authored by: Anonymous on Friday, November 16 2012 @ 07:02 AM EST |
Looks MS has here some convincing arguments. About the value of all patents.
These arguments should be used in patent negotiations with Apple and Microsoft.
And showed to jury's in patent litigations.
One argument suggests the price of the patent licence should not be higher then
the component that does the bigger action where some little elements would be
patented. Somewhat my feeling also. Surely in the case of software that can be
obtained free of charge. Obviously no patent license fees should be charged
either to someone using that component.
On the other hand would it not be quite unreasonable to charge only a fraction
of the amount that in the industry is usual for patents with the same, very
limited, utility? To not use them as a defence if frequently other patents are
used to slow down the growth of competing technology?
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Authored by: Gringo_ on Friday, November 16 2012 @ 07:55 AM EST |
...it is not realistic to think that a court
could construct a
"method" into which the parties could
insert numbers to produce a fair
valuation of a company’s
patent portfolio in a given area of technology. It is
no
more realistic to think that this court could arrive at a
fair valuation of
the ... patents simply by applying the
percentage of intellectual property
rights approach that
Apple has suggested. Each proposal exposes more of the
difficulties inherent in trying to pick a particular
monetary rate for an
agreement as complex as a licencing fee
for rapidly changing technology. Apple
has not explained how
it is possible to determine a rate without knowing the
answers to such questions as how a cross-license to the
other party’s patents
may affect that rate or what the scope
of the license is (a worldwide license
will be more valuable
than a license to sell in only one country or only a few
countries); what guarantees are incorporated into the
agreement; the length of
the agreement; or the frequency of
payments. In effect, Apple is asking the
court to assess one
part of a complex contract that has yet to be
negotiated.
Why is Judge Roberts willing to take on such a
task as
Judge Crabb has ruled to be "unrealistic"? Especially when
M$FT
made no attempt to negotiate with Motorola? Makes no
sense at all. I was
thinking the other day, all these third
parties who are worried that the
intimate details of their
licensing negotiations will be revealed to the world
at
large. Where were they earlier, before Judge Roberts took it
upon himself
to come to Microsoft's rescue? They should have
been filing amici with him to
prevent this trial in the
first place. [ Reply to This | # ]
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Authored by: Anonomous on Friday, November 16 2012 @ 12:23 PM EST |
In effect, Apple was asking the court to assist it in negotiating, not in
putting the parties’ dispute to rest.
Probably this was obvious to Her
Honor as soon as it was to us, but she had to wait until the appropriate time
say it.
-Wang-Lo.
[ Reply to This | # ]
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Authored by: Anonymous on Friday, November 16 2012 @ 04:03 PM EST |
a few years ago I was trying to get freeview Digital TV going here in New
Zealand. It had recently been released and used the latest h264 and AAC audio
specs which caused problems for my first attempts at using linux based mythtv.
The 1080i video decoding did not work reliably in software decoder and looks
really bad without a good deinterlacer which are not efficent in software.
There was a linux hardware accelerated deinterlacing for nvidia called VDPAU but
it was new and I had problems at the time.
So I installed windows 7 which had just come out and went and got an XBOX 360.
This allowed me to stick the Windows 7 machine away in a cupboard and get it to
record TV and just have an XBOX as a media extender and it had great support for
1080i h264 playback which is quick and worked great for 3 years.
I also used the XBOX for a few games but very little time was spent on that and
97% of its powered on life it has been a TV playback device. 2 channels were
progressive 720p back then but they have since changed to 1080i so all channels
here I think are interlaced now (most channels are 576i).
Recently I've switched back to MythTV and am now using that instead and my XBox
is now only powered on every so often to entertain my nieces.
Michael[ Reply to This | # ]
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