Print 42 comment(s) - last by melgross.. on Aug 2 at 1:49 PM

Court finds Android phonemaker in violation of Microsoft file system patent, orders handset destruction

There's been another casualty in Germany, the most ban-friendly battleground of the mobile patent war: Motorola Mobility's flagship Android smartphones.

I. Motorola Handsets Slated for Destruction

In a ruling by the Mannheim Regional Court, Motorola Mobility was found to infringe on Microsoft Corp.'s (MSFT) "FAT patent" -- EP0578205  (A2), a patent that covers a "multiple file name referencing system".

The decision came after a judge in the same court awarded Motorola with a ban on Microsoft's Windows and Xbox 360 in Germany after he found that Microsoft had violated two of Motorola's patents on the h.264 video standard.  The same German court has also banned Apple, Inc.'s (AAPL) iCloud service for a separate infringement against Motorola, and has banned Samsung Electronics Comp., Ltd.'s (KSC:005930Galaxy Tab 7.7 for an alleged design infringement against the 9.7-inch iPad.

Banning Windows or an entire smartphone lineup may seem bizarre by American standards, but its par for the course in Germany.  The nation has slightly lower criteria for banning products in cases of probable infringement.  The country also carries out infringement and patent invalidity queries along separate tracks, making it harder to avoid a ban by invalidating a bad patent.  Combined, these subtle difference sum to a "ban first ask question later" policy that is unusual even by European Union standards.

The Motorola Atrix 4G is among the Android handsets slated for destruction under a punitive German court ruling. [Image Source: Philip Kamrass/ Times Union]

The latest ruling, which pertains to Microsoft's ubiquitous File Allocation Table (FAT) file system, is among the more severe as Motorola has been ordered to recall all its smartphones with the technology and surrender all its stock.  The handsets will be destroyed as per the court order.

Court spokesman Joachim Bock says Motorola will also have to pay Microsoft damages for all the handsets it has sold.  Microsoft will have to pay a bond, he added, to enforce the preliminary ruling.  He commented, "If Microsoft wants to execute the decision now, they will have to pay a security deposit which is between 10 and 30 million euro."

(€10M = $12.25M USD; €30M = $36.75M USD;)

II. Microsoft: A Questionable Ally; a Dangerous Enemy

Microsoft cheered the ruling, commenting:

Today's decision, which follows similar rulings in the U.S. and Germany, is further proof that Motorola Mobility is broadly infringing Microsoft's intellectual property.

Among its handsets that to be destroyed are its flagship models -- the Motorola Atrix, the Droid Razr, and the Droid Razr Maxx.  The company in May became a subunit of Google, Inc. (GOOG) and continues to lose money despite Google's hopes for a turnaround.

Motorola, however, is likely to appeal this damaging ruling. A representative for the company released the following statement to AllThingsD:

We are in [the] process of reviewing the ruling, and will explore all of our options, including appeal. We don’t anticipate an impact on our operations at this time.

In the U.S., a final ruling the Motorola Mobile v. Microsoft battle has been delayed.  One Judge in a preliminary examination recommended banning Microsoft's Xbox 360 from sale in the U.S.  A separate U.S. International Trade Commission three judge panel has suggested banning the import of all Motorola Mobility smartphones on the ground of a different patent --  U.S. Patent No. 6,370,566 -- a patent which covers scheduling meetings on a mobile device.

Microsoft sign
Microsoft has declined to protects its licensees from its partner Apple. [Image Source: BGR]

Microsoft has urged Android smartphone makers to license its large portfolio of mobile patents.  Both HTC Corp. (TPE:2498) and Samsung complied, paying between $10 and $15 USD per device.  However, Microsoft has thus far declined to protect its licensees against Apple, another large mobile patent holder who itself is party to a cross-licensing pact with Microsoft.

In other words, Microsoft makes a pretty poor ally, but it makes a dangerous enemy presenting Android phonemakers with a difficult decision.  Motorola decided to gamble and refuse to license, and now it's preparing to pay the ultimate price in Germany.

Sources: ComputerWorld, AllThingsD

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So why didn't...
By Motoman on 7/30/2012 11:27:37 AM , Rating: 5
...the judge demand that XBoxes get destroyed in the same manner?

At any rate, I've been saying all along just let everybody ban everybody else, and when no one can sell anything, tear the system down and rebuild it in a non-moronic manner.

Motorola got Microsoft banned. Microsoft got Motorola banned. Everybody loses. Yay!

RE: So why didn't...
By MrBlastman on 7/30/2012 11:36:01 AM , Rating: 3
This is pretty stupid. The whole patent war is stupid. Trying to win over people with lawyers is stupid.

Look, we're people. We buy what we like and want, not what some court orders us to use. We all lose when stupid things like this happen.

RE: So why didn't...
By Brandon Hill on 7/30/2012 11:37:50 AM , Rating: 5
I say let the CEOs duke it out in a fist fight. I'm sure Ballmer could bruise his way through quite a few bouts ;)

RE: So why didn't...
By MrBlastman on 7/30/2012 11:46:56 AM , Rating: 2
That or a game of Quake/Doom/Duke3d--h ardcore shooters only. I'd love to see that. :)

RE: So why didn't...
By drycrust3 on 7/30/2012 12:49:31 PM , Rating: 2
We all lose when stupid things like this happen.

Totally agree. While Microsoft's lawyers call it a victory, it isn't, it's just a sad stepping stone along a path that leads to nowhere.
To me, one of the sad things here is why Motorola can't just change the file system from FAT to something else, e.g. JFFS2 or YAFFS?

RE: So why didn't...
By sprockkets on 7/30/2012 1:23:34 PM , Rating: 2
Not sure about Moto, but 4.0 and up uses MTP only for file access, thus negating direct file access for the computer. This means a MS computer can still add files to an android phone but not worry about the FS type being EXT4.

Ironically it doesn't work well in Linux (since it is a MS protocol). At least nowadays it will allow .ogg files to go in. Before it flat out denied it - now it will allow you to with a warning.

It's becoming a moot point really - I paid $1.40 for an app to move stuff over via a web browser on the LAN.

RE: So why didn't...
By Lonyo on 7/30/2012 12:13:21 PM , Rating: 5
Because IIRC the Xbox patent related to h264, which is FRAND based. Destroying something because they are not licensing something as they dispute the licensor is offering legit terms isn't the same as not licensing something that you don't have any right to license.

Microsoft basically have a right to the relevant h264 patents, on fair, reasonable and non discriminatory terms. Motorola are just plain infringing on Microsoft's patent.

It's not a straight patent infringement vs patent infringement situation.

RE: So why didn't...
By nafhan on 7/30/2012 12:27:45 PM , Rating: 2
It's not a straight patent infringement vs patent infringement situation.
Sure it is. Those are just details. The outcome currently appears to be: the consumer loses big time. FRAND is not a terrible idea, but it is a to small band-aid on a broken system.

Also, doesn't "destroy" seem a bit extreme? Shouldn't they just ship them back to Motorola or something?

RE: So why didn't...
By ProZach on 7/31/2012 7:25:07 PM , Rating: 1
Destroying handsets does seem extreme. In my Ameri-centric opinion, it's at at minimum unethical.

I would imagine the affected devices' FS only exists in software/firmware can be wiped and replaced. No need to throw the actual handsets themselves in the fire.

RE: So why didn't...
By ProZach on 7/31/2012 7:25:20 PM , Rating: 1
Destroying handsets does seem extreme. In my Ameri-centric opinion, it's at minimum unethical.

I would imagine the affected devices' FS only exists in software/firmware can be wiped and replaced. No need to throw the actual handsets themselves in the fire.

RE: So why didn't...
By augiem on 7/30/2012 1:56:08 PM , Rating: 2
Germany is quickly going to become an electronics wasteland. If this had happened 20 years ago, now everyone would still be stuck using VCRs and cassette Walkmans still. All the kids growing up there will be fueling a black market for the latest gadgets smuggled in from neighboring countries with more sensible judges.

RE: So why didn't...
By B3an on 7/30/2012 2:36:35 PM , Rating: 4
You would have thought that Germany would have learned from the Nazi's banning loads of things. But they never learn. Seriously messed up people and culture.

RE: So why didn't...
By Motoman on 7/30/2012 3:14:22 PM , Rating: 4
...right. Because America is just peachy.

RE: So why didn't...
By B3an on 7/30/2012 8:55:56 PM , Rating: 1
I'm not from America.

RE: So why didn't...
By freedom4556 on 8/1/2012 1:05:33 PM , Rating: 1
I'm not from America.

Riiight, because whatever socialist country you're from is just peachy.

RE: So why didn't...
By JediJeb on 7/30/2012 6:34:05 PM , Rating: 5
Seriously messed up people and culture.

I wouldn't quite say "seriously" messed up. The Germans are the only European Union member that more or less believes in only spending money that you have and people working for what they get, instead of countries like Greece that give out money they don't have and have let themselves get in such bad financial shape they are bleeding the rest of the EU dry.

One section of their legal system being messed up doesn't mean the whole culture and people are.

RE: So why didn't...
By Ramtech on 7/30/2012 9:34:09 PM , Rating: 2
Right so UKs pervasive surveillance was inspired by third Reich
- how about Presumption of innocence this citation from wiki explains that in UK it is nonexistent
Citizens can therefore be convicted and imprisoned without any evidence that the encrypted material was unlawful

I can dig up even more if you'd like best regards to Airstrip One

RE: So why didn't...
By Ramtech on 7/30/2012 9:36:17 PM , Rating: 2

Right so UKs pervasive surveillance wasn't? inspired by third Reich

RE: So why didn't...
By whitt107 on 7/31/2012 3:13:51 AM , Rating: 2
Ever since this started, I've always wondered if anyone could make patents on a patent making system, then sue whoever does patenting for infringement.

RE: So why didn't...
By gorehound on 7/31/2012 8:44:10 AM , Rating: 2
Germany is Patent Troll Country for Europe.
Lawsuit after Lawsuit !

By melgross on 7/30/2012 12:18:51 PM , Rating: 1
I'm happy to see this. I don't agree that patents should be eliminated. People who think this don't understand the nature of what they do. My old company had 43 patents. Twice, we caught other companies using our IP, and we took them to court. We won both cases. It's simply wrong for another company to use your IP without at least an attempt to license it.

We didn't license, because we developed our IP for our own use, as so we stopped them from using ours. The entire concept behind patents is to get others to do their own R&D. If a patent isn't out to license, or if a company thinks the fee is too high (this doesn't apply to FRAND patents), then it's their business to try to find a way around it. That's the way innovation happens. It doesn't happen with companies taking IP that already exists and using it for free.

These days, where so many people think that they are entitled to whatever they want, the understanding of the patent system is at a low. The problem for companies is that there are so many patents in this age of sophistication, that companies often miss a patent when they do their work, so some company pops up after a few years of them using it, and demands payment. Or a company thinks a patent isn't valid, and so uses the work without paying. Sometimes they're right, and sometimes they're wrong.

I read an estimate that a smartphone these days can involve 350,000 patents. Most of those are in large pools, so they're easy to license, but many are not, so they have to be negotiated individually. And some are not up for licensing. Both Motorola and Samsung are being investigated for FRAND abuse both here and in the EU, because they agreed to license those patents equitably, but are targeting Apple and a few other companies outside of that agreement.

No question this is a mess, but people complain that Chinese companies steal the work of others. Those same people should also complain when western companies steal the work of others too, if they are going to be fair about it.

RE: License
By geddarkstorm on 7/30/2012 12:50:24 PM , Rating: 3
It's not patents that are a problem, they are an important part of the economy as you say. But it's what's being allowed to be patented that's the problem, and the punishments for infringement in this German court.

We consumers are being robbed a great deal of our products because of patents that say a 7.7" tablet is infringing on the look of a 9.7" and causing consumer confusion? Really? You could confuse the two?

Or that an ancient, ubiquitous file system like FAT is somehow worthy of destroying headsets? At what point does something become so ancient and standard as to no longer be protectable under a patent? And banning Windows/Xbox360 because of h.264 codecs, which could easily just be disabled with an update, or replaced with an (yes, likely slightly inferior) alternative?

The punishments just don't fit the crime, so to speak, and it's really getting out of hand. We are the ones losing the most.

RE: License
By Ammohunt on 7/30/2012 2:01:14 PM , Rating: 2
Or that an ancient, ubiquitous file system like FAT is somehow worthy of destroying headsets?(sic)

FAT was used by Motorola to specifically allow access to their handsets by Microsoft based Operating systems. Microsoft made ahuge investment in making FAT ubiquitous and there is a ton of value there still! $10 a handset is reasonable for that functionality and is usually passed down to the consumer anyway.

RE: License
By geddarkstorm on 7/30/2012 2:35:01 PM , Rating: 3
That is reasonable. But what isn't reasonable is physically destroying handsets because they can interface with Windows via FAT. You can just ban imports till licensing issues are fixed, or till Motorola updates with a non-FAT method. There are far more rational decisions, and the punishment is way over the top. That's my whole point.

RE: License
By homebredcorgi on 7/30/2012 1:05:58 PM , Rating: 2
And what did your company do? That's great, (in theory) that's how patents are supposed to work. But you ignore the vast misuse of the system in which companies are using the system to stifle each other

Here are the main problems:
1. Patent quality is very poor.
- Patents are purposefully written in a vague manner so that they cover more than they should.
- Two conditions of a patent that are rarely addressed are the issue of prior art and "obviousness" - which our current patent system appears to ignore completely. Not to mention you can patent anything - even devices that clearly do not work, such as perpetual motion machines.
- As a result of the above, literally tens of thousands of patents overlap each other or are patents on the same idea/concept. This is particularly acute for software patents.
2. Software, in general is too vague to conceptualize in a patent. It should be covered by copyright law.
- Most programmers decry software patents
- The nature of software means it is extremely easy to patent a concept and even easier for it to be copied
- Examples of somewhat silly software patents: Mouse-over pop-up text on websites, Amazon's 1-click ordering
3. Large companies are outright purchasing bundles of patents in anticipation of future litigation. It has turned into an arms-race.
- The hope was that each company would have so many patents that overlap each other, litigation would be too costly. Oops.
- Smaller inventors/companies can't afford to purchase a massive trove of patents and will often settle any litigation (even if they fully believe they are in the right) because they can't afford it. See patent trolls.
- The use of patents as a litigation tool does not foster innovation and goes counter to what the patent system's intended use.

Most readers here are against software patents specifically and the outright purchase of others' patents solely for use in litigation. This is what we decry when we say the system is broken.

RE: License
By JediJeb on 7/30/2012 6:57:20 PM , Rating: 3
3. Large companies are outright purchasing bundles of patents in anticipation of future litigation. It has turned into an arms-race.

This is what should be stopped. A very very simple way to do so would be to make the patents non transferable. If an entity patents an idea, then that idea is the property of that entity as long as that entity exist(person or company)then upon death of a person or dissolution of a company that holds a patent, that patent becomes public domain. During the time the patent is valid, the patent owner can license it however they wish, and they are legally protected from having others use their patents without permission.

This alone would put a huge dent in the patent trolling business since only someone with the ability to develop something worthy of being patented would be able to obtain patents, and most would not spend the money to develop them if they were not going to actually use them in some fashion.

RE: License
By melgross on 7/30/2012 7:36:42 PM , Rating: 2
My company was a manufacturer of professional audio equipment for broadcast stations, recording studios, disco's, etc. pretty expensive stuff.

A problem with writing a patent is that if it's written too narrowly, then it's too easy to come up with something that's almost exactly the same without doing any work. If the patent is too narrow, it may not cover anything useful, meaning that variances in equipment would require numerous extensions to the patent over the years which becomes very time consuming, and expensive.

Obviously, ifyou invent something, you want to prevent your close competitors from building something similar enough so as to negate your own work.

Prior art is dependant on what that means. If someone comes up with an idea for something, but does little, or nothing at all, to advance that idea towards a useful completeness, then is that prior art? I don't think so. A lot of people posting on the Internet don't realize that an article about some idea is not prior art.

I find the concept of obviousness to be the must amusing, and frustrating part of this. If an industry has been around for some decades, and no one has come up with invention "A" until one particular person does, then can it truly be said, in hindsight, that it was "obvious"? No, it can't. Yet, I read postings from people who have never invented anything, saying how obvious something is. They have no idea just how difficult it is to invent. But it's extremely easy to armchair someone else's invention. That's particularly true if someone dislikes a particular company whose invention it is.

I see nothing wrong with software patents. I really don't understand why some people are against them, other than it prevents their favorite company from getting something for free. Software is no different from electronics, mechanics, or whatever. It's just another way of doing something.

What I do think needs modifying is the length of software patents. 20 years is too long for software. I proposed, some years ago, that it be shortened to 10 years, possibly even 7. That would eliminate most of the problems associated with them.

There's also nothing wrong with purchasing patents. When the founder of our company decided to retire, we made a decision to sell the company. The main reason we found a buyer at a good price was because of our patents. Are you saying that they shouldn't have been allowed to buy us and use the time left on out patents? That wouldn't be fair. Patents, and the companies that own them are allowed to be sold, and should be, as they are property.

What hinders innovation is when companies don't spend money on their own R&D, and use other's work for their own. By not paying those others for their work, it's also not fair to the owners of the work, and that's whether it was invented "here" or bought from somewhere else. As far as small companies go, that always been a problem, and it always will. But most small companies come into existence BECAUSE the founder(s) came up with a new invention, and patented it.

Let's look at Google, as an example. When Larry Paige was at Stanford, he invented what is popularly known as the "page turn patent". As usual, the rights resolve to the university, as it was there that the work was done. When he left to found Google, he, and Google's lawyers negotiated a license for that patent. Now, Google could have negotiated a non exclusive license, so that any other search company could use that patent, but they didn't. They negotiated an exclusive patent, so only they could use the work. This patent gave them, and still does, a big advantage over other search engines, and allowed Google to exist with Yahoo, AOL, and others that were around longer, and were far bigger.

If these other companies could have used this patent, it's a very good chance that Google would never have become the company it is, and Yahoo could be the elephant in the search business, or even AOL, or someone else.

This has been true thousands of times. So patents not only help small companies get started, but force entirely new industries to be formed with entirely new companies pushing the older ones out of the way. This is a GOOD thing.

The problem the patent system has is that it costs money, big money, to hire patent examiners who are expert in the various areas. This is a problem because it comes out of taxes (and the fees companies pay). Who wants to pay more taxes? That's the main problem.

RE: License
By sprockkets on 7/30/2012 1:05:58 PM , Rating: 2
So what patent did you have to take someone to court over?

To add to the stuff going on, even Moto found prior art over the method described in Microsoft's FAT patent. Not sure if that helped here, cause it didn't for the ITC.

It's actually very easy to get around it, and there already is a patch made years ago for the Linux kernel to do just that.

As for MS suing over making multipart SMS messages appear as one on the other end, that's just BS.

RE: License
By Belard on 7/30/2012 4:20:12 PM , Rating: 2
And Linux doesn't even need FAT... but FAT is used for flash memory so that its compatible with Windows if the user wants to xfer data...

Hmmm, maybe that is why more and more phones don't have up-gradable memory slots?

RE: License
By melgross on 7/31/2012 10:48:07 AM , Rating: 2
Patents related to bass response of a speaker system for one. The other is more difficult to explain, but relates to RF circuitry.

The "getting around it" is one of the entire points of patents. That how we get real progress, by making people think of other, or better ways, not just copying what's already been done.

could bite them in the ass
By Belard on 7/30/2012 4:17:26 PM , Rating: 2
And what about when a judge declares that iPhones and/or Windows Phones be destroyed?

Considering the WASTE/ pollution issues involved, they should simply be band and sold else-ware.

RE: could bite them in the ass
By bennyg on 7/31/2012 9:29:03 AM , Rating: 2
Destroyed... this is the wierd part. Courts usually don't like to get involved in enforcement, this is why they usually like making a declaration and letting the police enforce any act in contravention (as Contempt of Court and equivalents)

Why not just order Google/Motorola that having any components related to the "infringement" - storage, and IO and firmware chips - is bad and the device is banned from sale. Is there any proof the sale-bans of other devices are not being complied with?

This, and so many other decisions coming out of German IP courts recently, stink real bad. I hope they don't export this silliness throughout Europe as a precondition of giving all those broke countries their bad loans...

WTF Germany?
By Florinator on 7/30/2012 12:16:16 PM , Rating: 3
I used to be a big fan of Germany, but this... WTF??? Over the last few years, every decision they made in the "patent wars" was ridiculously stupid!

By msheredy on 7/30/2012 11:39:35 AM , Rating: 2
Must be a great time to be in Patent Law.

By Kurz on 7/30/2012 12:00:46 PM , Rating: 2
Not my Atrix!

Still, we have created quite a web for ourselves.

Patent Warfare
By Ramtech on 7/30/2012 2:42:14 PM , Rating: 2
MS and Apple (and others) patent warfare is damaging to the free market economy and competition i wonder when the government will figure this out

On the way to...
By whitt107 on 7/30/2012 3:14:07 PM , Rating: 2
Mutually Assured Destruction.

and well... I guess they could change from FAT to OBESE or something to get around this...

Win for Motorola
By boobo on 7/30/2012 7:07:48 PM , Rating: 2
Ironically enough, this seems like a win for Motorola, in a sense. After all, they got into this crazy patent war in the first place to show Apple that trying to restrict competition through patent abuse would only lead to mutually assured destruction.

Sure enough, courtroom wins for all sides abound, and yet, everyone is losing.

All big companies have too many patents to be able to produce anything without infringing on someone else's IP. If someone gets zealous in protecting their patents from every little wide possible infringement, nobody will be able to produce anything at a reasonable price.

What if they held a court case...
By emueyes on 7/31/2012 12:51:25 AM , Rating: 2
Thankfully the lawyers and judges are so self serving and so intent on their reality that we are all safe; I probably shouldn't mention that we can all procure anything we want, anytime we want, and that as far as rulings and judgements, or national borders or *cough* patents on FAT ( a good one ) are concerned... no one cares.

How very green of Germany.
By dark matter on 7/31/2012 4:40:36 PM , Rating: 2
Don't give them away to charity.
Or recycle them.

Simply destroy them.


By melgross on 8/2/2012 1:49:50 PM , Rating: 2
The reason these things get destroyed, which, by the way, is common practice, is because the infringing products damage the sales of the company they infringed. If they were given to schools, libraries, etc. that would still damage the sales of the infringed party.

By superstition on 7/30/2012 8:57:50 PM , Rating: 1
OMG Apple is the worst company ever. I can't believe people buy their overpriced crap so they can kill competition. Those latte sipping Macaloyts have been brainwashed by Steve Jobs. Microsoft Windows 4-ever! PCs rule!

Oh wait...

"Nowadays, security guys break the Mac every single day. Every single day, they come out with a total exploit, your machine can be taken over totally. I dare anybody to do that once a month on the Windows machine." -- Bill Gates

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