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The court is well aware that it is being played as a pawn | 144 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Thread Here...
Authored by: lnuss on Monday, January 28 2013 @ 09:14 PM EST
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Larry N.

[ Reply to This | # ]

Off Topic Thread Here...
Authored by: lnuss on Monday, January 28 2013 @ 09:15 PM EST
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Larry N.

[ Reply to This | # ]

Newspicks Thread Here...
Authored by: lnuss on Monday, January 28 2013 @ 09:16 PM EST
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Larry N.

[ Reply to This | # ]

COMES Thread Here...
Authored by: lnuss on Monday, January 28 2013 @ 09:17 PM EST
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Larry N.

[ Reply to This | # ]

Thanks to the Volunteer!
Authored by: lnuss on Monday, January 28 2013 @ 09:23 PM EST
Thanks very much for taking the time and effort to cover this for us.

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Larry N.

[ Reply to This | # ]

Report from the Seattle Courtroom in Microsoft v. Motorola ~pj
Authored by: Ian Al on Tuesday, January 29 2013 @ 03:31 AM EST
From Wikipedia:
An application-specific integrated circuit, or ASIC, is an integrated circuit (IC) customized for a particular use, rather than intended for general-purpose use. For example, a chip designed to run in a digital voice recorder is an ASIC. Application-specific standard products (ASSPs) are intermediate between ASICs and industry standard integrated circuits like the 7400 or the 4000 series.

As feature sizes have shrunk and design tools improved over the years, the maximum complexity (and hence functionality) possible in an ASIC has grown from 5,000 gates to over 100 million. Modern ASICs often include entire microprocessors, memory blocks including ROM, RAM, EEPROM, Flash and other large building blocks. Such an ASIC is often termed a SoC (system-on-chip). Designers of digital ASICs use a hardware description language (HDL), such as Verilog or VHDL, to describe the functionality of ASICs.

Field-programmable gate arrays (FPGA) are the modern-day technology for building a breadboard or prototype from standard parts; programmable logic blocks and programmable interconnects allow the same FPGA to be used in many different applications. For smaller designs and/or lower production volumes, FPGAs may be more cost effective than an ASIC design even in production. The non-recurring engineering (NRE) cost of an ASIC can run into the millions of dollars.

The initial ASICs used gate array technology. Ferranti produced perhaps the first gate-array, the ULA (Uncommitted Logic Array), around 1980.
VHDL was originally developed at the behest of the U.S Department of Defense in order to document the behavior of the ASICs that supplier companies were including in equipment. That is to say, VHDL was developed as an alternative to huge, complex manuals which were subject to implementation-specific details. The idea of being able to simulate this documentation was so obviously attractive that logic simulators were developed that could read the VHDL files. The next step was the development of logic synthesis tools that read the VHDL, and output a definition of the physical implementation of the circuit.
I don't know how modern ASICs are configured, these days, but I have a better idea of how Field Programmable Gate Arrays (FPGAs) are configured. An FPGA has a lot of circuit blocks that have special electrical properties such as Input/Output drivers and functions, computation, memory and clock circuits. The core is the logic block.

Logic circuits, such as an AND gate, are conventionally made with a handful of transistors. The 2 input AND gate transistors make sure that when both the inputs are at '1' the output is '1'. For all other permutations the output is at '0'. If you think of the device as four, one-bit memory cells, then the address 11 contains '1' and the other addresses (10, 01, 00) contain '0'. If you wanted an OR gate or an Exclusive OR gate you just have to put the correct values from the truth table into the memory cells. As I understand it, that is how ASICs and FPGAs are 'programmed'.

Programmers don't program the ASICs or FPGAs. They use GUI logic simulation tools that can load and save Verilog or VHDL files and, once the logic and other functions operate correctly in the simulation, set the values required by the chip to deliver those functions. The programmer does not have any knowledge of how the real world circuits are used or interconnected.

The 'programmer' does not write in a programming language. The programmer devises a virtual circuit on the computer screen and the software tools configure the chip. For FPGAs the design is not usually held in the chip. There is a serial memory chip that holds the configuration memory values and the FPGA loads the values when the power is turned on. Note what Wikipedia says about the cost of designing an ASIC. The abstract engineering functions are not the difficult part: it is the fine-tuning of the virtual circuit to deliver the function. None of that cost would be incurred during the conjuring of the abstract engineering functions. How novel and useful are the engineering functions?

The patent that Motorola released to the ITU and the IEEE under FRAND terms for H264 does not define the virtual logic circuit needed to deliver the function in the ASIC or FPGA. It just defines the function of the circuit.

No matter what real world electrical, hydraulic mechanical or other engineering system is used to implement the patented functions, the system infringes upon the functions.

If one realises the electrical functions using vacuum tubes and selenium rectifiers, one still infringes on the electrical functions in the patent.

If one realises the electrical functions using a program in a computer, everything changes. The actual logic executed by the processor has to be programmed using a mathematically valid computer programming language. The programmer does not know the actual codes executed by the processor, but there is a mathematical correlation between what he writes and what the processor does.

As the report puts it,
Microsoft's argument is basically: um you don't have an algorithm in here you seem to be claiming any and all electronic devices that do this poorly described stuff with no information on how to implement it.
It is abstract engineering ideas not narrowed to an engineering environment. Fair point, Microsoft, but you argue that stating a math algorithm that helps in implementing the engineering function would rescue the patent from invalidity. However, the only time the math algorithm implements the engineering function is when the invention is programmed into a computer. The math algorithm does not implement the invention in an ASIC or an FPGA. It would only help a math literate user of the relevant computer tools to create the virtual circuit implementing the 'invented' electrical functions.

My reason for boring you silly about this stuff is to make a comment on the patent system (and not just the US patent system).

A review of the above against U.S.C. 35, Sections 101 and 112 and the associated Supreme Court opinions shows that the invention is non-statutory subject matter being abstract engineering ideas and not a machine or process. In addition, no 'one' can be skilled enough in all of the engineering arts that might be used to design an infringing machine from the disclosures in the patent. In fact, there is insufficient disclosure to make any infringing machine.

I feel sure that the equivalent patents around the world are invalid for the same reasons even though the patent laws will vary greatly from jurisdiction to jurisdiction.

There are no such things as 'software patents'. The software is never patented. The Fraunhofer Institute patented the mp3 algorithms around the world and they are deemed infringed by the courts whether implemented by programming a computer, creating the abstract idea of electrical logic in ASIC and FPGA design tools, or using analogue operational amplifiers.

Oh, wait a minute, the mp3 algorithms don't work on analogue signals. They only work by manipulating the digital symbols representing analogue audio by encoding using the international CCITT standards. Abuse of the patent laws is not restricted to the US or software or computer devices.

---
Regards
Ian Al
Software Patents: It's the disclosed functions in the patent, stupid!

[ Reply to This | # ]

Report from the Seattle Courtroom in Microsoft v. Motorola ~pj
Authored by: Anonymous on Tuesday, January 29 2013 @ 04:12 AM EST
Thanks very much for covering this. In a way I am actually impressed by the
Judge's observations that this case is hubris with either party using the courts
as a commercial negotiating tool.

The judge has IMHO correctly rejected the "breach" claim by Microsoft
but at the same time rejected the ability for Motorola, for the time being, to
block Microsoft products. The latter would be unacceptable if the case were not
going to trial, which seems to be the case.

Basically he is holding in both parties in contempt (not in a legal sense) but
unfortunately, probably because Motorola has obtained an injunction in Germany,
has not thrown the case out with prejudice. In my opinion he should.

It is unfortunate that he cannot force both parties to negotiate (even if one
has indicated a willingness to negotiate) and so he believes that he has no
option but to hear the case, as will the higher courts when the final decision
is appealed.

But this is the problem with patents of this sort, whether they are FRAND or
"Design". Patents provide a commercial advantage and corporations are
under a duty to make full use of all tools, including the courts, to maximise
that commercial advantage just as corporations are under a duty to minimise
taxation. This is where morality and corporate duty separates and the result is
that all are damaged.

As the judge says this case is an expression of "extreme pride or
arrogance, often associated with the loss of contact with reality" of both
parties. If it were an individual they recipients would hang their head in shame
and so they should.

[ Reply to This | # ]

The court is well aware that it is being played as a pawn
Authored by: Anonymous on Tuesday, January 29 2013 @ 07:20 AM EST

Wow. The judge sounds less than pleased.

Wayne
http://madhatter.ca

[ Reply to This | # ]

Watch your language
Authored by: Ian Al on Wednesday, January 30 2013 @ 03:51 AM EST
THE COURT: Well, you know, when we talk about document language, contract language, don't I need to know what patent is covered by what -- I'll call them a convention, or an industry-standard agreement.
THE COURT: I'm looking at the Letter of Assurance for essential patents signed by Jonathan Meyer, senior vice president, dated April 21st. I've come to the conclusion that it's 2005. His handwriting is worse than yours and mine. And it says, "Patent Holder is prepared to grant a license." There is no attachment to it.

MR. JENNER: That's probably an IEEE version.

THE COURT: It is.

MR. JENNER: For the ITU there are patents, for the IEEE there are not.

THE COURT: But for the ITU you describe them as non-exclusive lists. Help me with that.

MR. JENNER: The parties would negotiate and agree on a need for additional -- that's the problem with judicial resolution of a term like this. I understand Your Honor's difficulty in trying to understand what precise set of patents are we talking about. The parties know that they're not talking about a precise set of patents, they are talking about the ones that are listed. That's on the table. But the parties appreciate that other patents may come along which are essential for the benefit of the licensee, and they become included because they are essential. There's no way for you to know that.

THE COURT: Let me ask you this question, then. Is there any patent which is in dispute in this matter before me that is not covered by either the ITU or the IEEE?

MR. JENNER: Let me answer that one this way: To the extent that --

THE COURT: I think yes or no would be a great answer.

MR. JENNER: Then the answer has to be yes.
THE COURT: Well, here is what is troubling me, Mr. Jenner. I'm looking at the ITU what I think is Exhibit 4, Document 79. The operative language signed by a representative of General Instrument Corporation, looks like a Mr. Bawel, B-A-W-E-L. He checks the box that says, "The Patent Holder will grant a license," then the language continues. "Will grant." In that context, it's mandatory. It says, "You will grant."

Then I look at the IEEE, the same Letter of Assurance, or same form Letter of Assurance signed in this case by Mr. Meyer, and it says, "The Patent Holder is prepared to grant a license." Now, you make a big, big thing out of the difference in the language here. And now when it serves both sides, they kind of sweep that whole argument away and say, this is what it means. And that's what's troubling me, the language changes.
I think you know my view: neither the ITU nor the IEEE agreed contractual terms constituting a meeting of the minds and an exchange of consideration. Neither the ITU patent declaration nor the IEEE Letter of Assurance qualify as contracts and therefore there can be no third party beneficiary.

The judge has decided otherwise and has decided that, in his jurisdiction, there are third party beneficiaries to the contracts. Further, those third parties are everybody in the world. Now the judge has to determine the legal meaning of the language in what he deems to be contracts.

The writing of the GPL was difficult because it had to have the same meaning in every jurisdiction in the world. Even though the Letter of Assurance and ITU declaration text are not intended as contracts, they are, nevertheless, intended to have the same legal meaning everywhere in the world in the same way as the GPL.

The third party beneficiary concept does not appear in many legal jurisdictions. Even taken as contracts, the global nature of the IEEE and the ITU language cannot be assumed to encompass third party beneficiaries. Motorola made the specific point with regard to the German injunctive action.

The judge is in error in his interpretation of 'will grant' in the ITU wording to be a mandatory contract condition. In fact, the latest wording is changed to more accurately reflect the ITU's intention (bearing in mind that we are not talking about a legal contract).
2. The Patent Holder is prepared to grant a license to an unrestricted number of applicants on a worldwide, non-discriminatory basis and on reasonable terms and conditions to make, use and sell implementations of the above document.

Negotiations are left to the parties concerned and are performed outside the ITU-T, ITU-R, ISO, or IEC.

Also mark here __ if the Patent Holder’s willingness to license is conditioned on Reciprocity for the above document.
Since the ITU documentation is not a proforma contract, then it is correct to look to the latest text to establish the ITU's intent. Further, the original declaration made it clear that the ITU would play no part in the negotiation of the licence. The court conceded that the third party beneficial term in the deemed contract was the preparedness to issue a licence. The licence only exists after the closing of the negotiation and the signing of the contract terms. That seems to be the judge's basis for deciding there was no breach of contract.

The reciprocity section is also relevant, here. It says (if there is a tick in the box - a strange element in a contract!) that if the licensee is also a holder of an essential patent listed in the standard, that the licensor is only willing to licence if the licensee is prepared to licence its own patent in a reciprocal licence deal.

The court discussed 'reciprocal' patent licences. However, they were not discussing the named IEEE and ITU standard essential patents.
One of the portions is 802.11-I, had to do with new security techniques. Finkelstein relates to new security techniques. Finkelstein would relate to 802.11-I. Motorola did not submit a Letter of Assurance for 802.11-I. There is no LOA covering Finkelstein, even though Finkelstein would be considered in the 802.11 patent. So that's a wrinkle. There may be other patents like that that we're not litigating at this point that fall into a similar wrinkle.
So, a standard essential patent not covered by a LOA FRAND agreement. Then there are what the court referred to as worthless, industry-essential patents like the MPEG LA pool for H264.
THE COURT: Let me take you down another rabbit hole, then. You just used a phrase that appears frequently in your pleadings, but is inconsistent with your position, which is you said, "I'm going to value them," referring to Microsoft's patents. Your position in the litigation is, you don't value the patents, you value the product. I've run into this dichotomy --

MR. JENNER: We value both. We value both. One of the things that would be given credit is the patent portfolio that Microsoft would be willing to license back. If they have valuable patents to license back, that's enormously important to Motorola. It would decrease what it asks for.
The judge is not talking about just FRAND agreements in this case: he also has to consider standard essential patents that are not formally included in an IEEE FRAND agreement and a bunch of MPEG LA litigation pool patents that are priced at 'as much as the market and patent holder can bear'. He has narrowly interpreted international LOA and declarations under US law and used that to declare them contracts. Is he really going to try and put a cash value on this mess? Is he really intending to throw the Google - MPEG LA extortion pool into this judgement?
THE COURT: Okay. And I'm going to put words in your mouth now. You're agreeing that you don't know a court that's done it in this context. But you don't disagree that that's a fairly common procedure in courts supplying missing terms in contracts.
It sounds as though he is! Towards the end, he is very critical of both sides for arrogantly forcing him to settle a purely commercial dispute instead of being reasonable and coming to a settlement. I think that he showed arrogance in disregarding the sovereignty of foreign legal jurisdictions and the global nature of standard setting organisations' participation agreements. His failure to distinguish between world standards and US industry standard patent pools has dragged him down this particularly surreal rabbit hole.

---
Regards
Ian Al
Software Patents: It's the disclosed functions in the patent, stupid!

[ Reply to This | # ]

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