Friday, August 14, 2009

Dust bunnies and McKenzie on Microsoft Word

In a post about the MS Word injunction titled Get A Grip: Microsoft Word Isn't Going Anywhere, Matthew McKenzie writes:

The peanut gallery is already screaming that Microsoft -- a company practiced in the art of dodgy patent claims -- is simply getting what it deserved. It's a vaguely satisfying notion, but the question remains: Will this case put Microsoft on the patent-reform bandwagon or simply egg on its own bad behavior?

It would be nice to hear Microsoft announce that enough is enough and support an overhaul of the U.S. patent process. We have known for years now that this system is badly broken, yet the federal courts are still jammed with high-tech gold diggers trying to portray themselves as the defenders of innovation.

The query -- [join] the patent-reform bandwagon or simply egg on its own bad behavior -- of course evokes IBM. Microsoft is a relative newcomer to the "get lots of patents" strategy. IBM is not. The press generally talks about IBM as a patent reform advocate [eg, IBM has been at the forefront of the patent reform movement, which seeks to reduce the waiting time between application and patent and to improve the quality of U.S. patents. from JULIE MORAN ALTERIO ] Nevertheless, IBM stockpiles quite a few bad patents, AND, in so doing, has followed prosecution practices which might be questioned [eg, IBM's US 7,571,105: issues of patent quality and exam quality. To a large extent, patent reform, as advocated by people by IBM and Microsoft, who themselves obtain so-called software patents, is nothing more than a sandbox argument, my patent is good and yours isn't. McKenzie should wipe the dust bunnies from his eyes.
Jaffe/Lerner stuff isn't reality.

**McKenzie also wrote:

The second option is a very safe bet. As others have pointed out, the federal court that tried this case is notorious as a magnet for patent trolls seeking a quick payoff. The plaintiff in this case may or may not fit that description, but it certainly knew where to file its lawsuit.

So, when Microsoft appeals, cooler heads are likely to prevail. A higher court will lift the injunction while the company pursues its appeal

Yes, this was a jury verdict in ED Texas. The issue before the judge was JNOV/new trial. McKenzie ought to look at some of the arguments Microsoft made, especially the one about "burden of proof."


IBM asserting its invulnerability to Bilski?

Changes are coming to the USPTO--meet incoming Director David Kappos from mxlegal:

Finally, I look forward to Kappos implementing some of what he learned at IBM to advance the sharing of information by the USPTO.

but also note:

but invariably, in any context, if you establish odd metrics to measure performance, many humans will shift their behavior to adapt to and thrive within those metrics. and then think about how the USPTO responded to Quillen/Webster


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