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Two Quick Words About Microsoft v. TomTom: Think Bilski
Thursday, February 26 2009 @ 07:17 AM EST

I'm getting a lot of email about Microsoft suing TomTom for alleged patent infringement, first reported by Todd Bishop on TechFlash. I've put lots of links in NewsPicks for you, and here are the two complaints, the regular complaint filed in federal court and the ITC complaint [PDFs]. I'll restrict myself for now to two quick words:

Think Bilski

Are Microsoft's FAT patents *hardware* patents? No? Then what makes you assume they are valid in the post-Bilski world? Don't even get me started on obviousness. Let alone who really "invented" that stuff. This may turn out to be an opportunity, frankly. If you read the ITC complaint, on page 23, by the way, you'll find that Microsoft is currently dealing with a nullity action in Germany regarding a foreign counterpart to the US FAT patents. It's also dealing with a Canadian challenge.

If you are new and wonder what Bilski means, here you go.

And to all those who insist that Microsoft has improved, and they should be treated just like anybody else, and included in Linux conferences and all that blah blah blah, would you please take a long walk on a beach or under a starry sky or something and after a little soul-searching, ask yourself: Have I lost my cotton-pickin' mind?

What might I mean about an opportunity? To remind you, after Microsoft squeezed past a reexamination of the patent in the US in early 2006, we were told of some possibilities going forward:

Sources said, "The re-issuance of the patent is based on the examiners having accepted an argument previously advanced by Microsoft and previously rejected in the history of the patent, so documented on the file wrapper [the docket sheet of activity which accompanies each patent]." Therefore, the PUBPAT (the Public Patent Foundation) is "not precluded from bringing a new re-examination request, and there is every reason to believe that [it] will be doing so."

Officially, Dan Ravicher, PUBPATs executive director and founder, said, "If Microsoft sues anyone for infringing them, the defendant in any such suit can raise any defense they'd like, including invalidity, and even including invalidity in light of this same prior art."

Indeed, "The patent offices' decision has no preclusive effect on a court, and there are indeed cases where the patent office made a decision in a re-examination supporting a patent and a court later looked at the same exact issue, disagreed with the PTO, and found the patent invalid," said Ravicher.


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