Microsoft Employee Spying Patent

Well, it is not really a spy patent, and I know no one would ever conceive of using Microsoft's new invention for such a thing. I am just saying some boss, somewhere, might be inclined to use this obviously pro-employee system of monitoring their bodily functions for evil, rather than for good. According to the patent application:

When a parameter is violated or a threshold is satisfied or exceeded, the system can automatically initiate the help request in order to identify the target activity and target user and determine the type or source of assistance most suitable for Joe and his activity. Parameters or thresholds can relate to the particular activity, to the user's physical state, or to the user's environment. For example, sensors can monitor the user's heart rate, blood pressure, body temperature, galvanic skin response, EMG, brain signals, respiration rate, movement, facial movements, facial expressions, etc. Alternatively, Joe can expressly request assistance.

See. It says right in the patent application "help request." It does not say that the email Joe receives because his blood pressure is too high asks him to clear out his desk. It does not even suggest such a consequence. Just because it can be used to automatically fire employees based upon their bodily functions, is no reason to think that it will be used to fire them.

All of those civil liberties groups and privacy lawyers up in arms about the threat this patent application poses are probably overacting. In the remote case that they are correct, however, and, to your chagrin, this patent pending system comes to company near you, I might suggest you simply grin and bear it. Otherwise, its facial recognition feature just might determine you are not a team player.

Oh, and you might want to cut back on the bran.

Brett Trout

Microsoft spy patent

Bill Gates - Inventor

Bill remains a busy boy
According to Todd Bishop's Microsoft Blog, Bill Gates has been named as at least co-inventor in over twenty recently published Microsoft patent applications. Is that news? I mean Bill is the captain of the ship. Didn't he simply tell the Borg to put his name on those patent applications? No, he couldn't, at least not without making every single one of the patents invalid. You see time, money and even omnipotence are simply not enough to qualify someone to be listed as an inventor under United States patent law.

What is an "Inventor"
Identifying a problem, say for instance low gas mileage, or even identifying a solution, say a car that gets 200 miles per gallon, still does not make you an inventor. To be listed as an inventor on a United States patent application, you have to conceive of a definite and permanent idea of a complete and operative invention.

Hard work is not enough
Strangely, the inventor need not actually create a prototype, or even put in the majority of work reducing the invention to practice. As long as the inventor can convey to someone of ordinary skill in the art enough information to replicate the invention, the inventor has done enough. Even if it took the creator an hour to conceive of the invention and it takes the person of ordinary skill a year to produce a prototype, at a cost of millions of dollars, the creator is the inventor and the reducer to practice is not.

The Right Stuff
Only if the reducer to practice contributes to the conceptualization of a definite and permanent, complete and operative embodiment of the idea is the reducer to practice a co-inventor. The reducer to practice has to contribute more than sweat, even if that sweat involves highly technical skills. If another similarly positioned highly skilled professional would have accomplished the same reduction to practice of the creator's conception, the reducer to practice is likely not an inventor. Conversely, if the reduction to practice required extensive research or experimentation to derive a working embodiment, the reducer to practice is likely a co-inventor.

Who Cares?
Why the big deal about determining inventorship? Well, under United States Patent Law, if you name someone as an inventor on your patent application that is not an inventor, or you leave a co-inventor off the patent application, any patent issuing from the application is invalid. Knowing this, infringers often attack the inventorship issue when defending themselves against accusations of patent infringement. Given infringers are likely going to spend at least tens of thousands of dollars investigating and taking depositions regarding a questionsble issue of inventorship, it is critical that YOU accurately resolve the issue of inventorship BEFORE you file your patent application. You can ASSIGN the patent application to any business or person you want, but the inventor(s) has to be the inventor(s).

Bill Gates - Captain AND Number One
In light of the foregoing, it is clear that Bill Gates is still in the thick of things, at least when it comes to transforming ideas into products. I am not saying that the internal Microsoft patent jury meetings probably do not defer to the big guy more than Stan the Intern when it comes to whose ideas to pursue, but it is notable that big Bill continues to do more than simply throw out ideas and order others to "Make it so."

Brett Trout

Microsoft patent Bill Gates

Microsoft Checks are in the Mail

Just in time for Christmas I received my share of the $179,950,000 Iowa Antitrust Microsoft settlement. Although $90 is a somewhat smaller check than other Iowa attorneys received from the case, admittedly all I did to receive mine was bang my numbers into the online form. And heck, at least its 1.5 Xbox360 games I did not have before.

Brett Trout

Microsoft antitrust

Microsoft Patent Means More Worms in Your Honeypot

Newly published Microsoft patent application (publication number 20070289018) has a rather interesting way of outlining the problem of detecting hackers attempting to misuse your system resources:

Various techniques have been developed and used to help detect the presence of such malware; unfortunately, detection of some malware has proved to be difficult. One technique attempts to set a trap, or "honeypot," to detect the unauthorized use of network resources. For example, unused IP address space, such as a subnet, on the Internet can be set up as one or more honeypots in order to detect Internet worm activity. The computer systems that are set up as the honeypots at these addresses will not be providing any real services other than to record the activities of the invader. These honeypots are designed to wait for and detect unauthorized use of the IP addresses. The theory behind creating honeypots is that a worm that is scanning IP addresses is going to stumble across the honeypot and become detected. However, the effectiveness of such honeypots and similar detection technologies depends, in large part, on the worm blindly attempting to connect to multiple IP addresses. As the creators of these worms become more sophisticated in their methods of acquiring targets, these honeypots are becoming increasingly less successful at detecting these sophisticated worms.

Kudos on the terminology. Who says patent attorneys have no sense of humor? (Easy there . . . don't make me turn off the comments)

Microsoft's new system inserts a trap door to a detection system into a resource location store. Monitoring use of the trap door for misuse is under control of the detection system. Upon detecting misuse of the trap door entry, the system responds. The patent application suggests responses such as terminating the software application being hijacked or requesting re-authentication.

Unfortunately, the patent application makes no mention of waterboarding as an appropriate response to hackers caught in the honeypot. Hopefully however, Congress will see its way to allow waterboarding, worm removal or other response suitable for hackers slipping their worms where they should not be.

Brett Trout

Microsoft hacker patent malware worm

Apple Gaming Patent

Although not issued yet, Apple filed US patent application number 2007/0279394 A1 on September 11, 2006. What makes this application notable, however, in that it appears to cover a touch screen gaming application, real estate Apple has typically surrendered to Microsoft, Nintendo and Sony. It is not clear what type of hardware Apple envisions for this new system. From the looks of things, it seems geared toward touch screen hardware like the iPhone, iTouch or something entirely new.

According to the patent application itself, "the manner in which input is received (or entered) can be used to determine which application should receive the input. The input area can additionally resemble or approximate the shape of a scene (e.g., game scene) to allow a person to provide input in a more intuitive way." So, depending upon where you touch the screen, or what you use to touch the screen, the application associates the action with one software application or the other.

As I have yet to hack my iPhone, here's to Apple hitting the street with portable touch screen gaming sooner, rather than later.

Brett Trout

Apple patent gaming

Microsoft Settlement Final

According to the Des Moines Business Record, Polk County District Judge Scott Rosenberg has just given final approval to the Microsoft settlement agreement. In the settlement, Microsoft will pay up to $179.95 million in cash to consumers and $67.2 million to the class action attorneys. One of the attorneys, Roxanne Conlin noted that the payments would be spread out across 150 separate people who worked on the case.

To receive payment for past purchases of Microsoft software, visit www.IowaMicrosoftCase.com before December 14, 2007.

Brett Trout

Microsoft antitrust

Microsoft Zune Patent Taking us Backwards?

According to Last100, Microsoft's new Zune patent appears to cover paying Zune users for sharing pirated music? How can this be? Apparently, Zune wraps its own DRM around any music it shares. With pirated downloads accounting for more than iTunes, Walmart, Amazon and Best Buy combined, Microsoft is licking its lips at the potential to monetize this untapped market with this patent. Wile the Zune does have at least one redeeming feature, if they can just convince a second person to by a Zune, they may actually have something.

Brett Trout

Microsoft Zune Patent DRM

Microsoft Surface

This puts a pretty nifty new face on computing.

Kudos to Brett Rogers for the post.

Brett Trout

Microsoft Surface

Halo 3 Release Date Announced

Minutes after posting my last piece on Microsoft, I find out Bungie has announced a release date for Halo 3. If only they had known I am like a two year old. Once I start crying, just jingle something shiny in front of me and I forget whatever it was I was mad about.

Do not plan on seeing much of me September 25, 2007. I plan on playing Halo 3 on my Xbox 360 all day. If my kid happens to ask you when it is coming out, do me a favor and tell him September 26. At my age, I need at least a day head start just to keep up.

Thanks to Martha for the link

Brett Trout

Microsoft Halo 3 Release Date

Software industry setting the stage for mutually assured destruction

"We live in a world where we honor, and support the honoring of, intellectual property [they are going to have to] play by the same rules as the rest of the business[.] What's fair is fair."

Who does that sound like? Wrong. Incredibly, those are the words of Microsoft CEO Steve Ballmer, speaking about the use of free and open source software (FOSS). According to Fortune senior editor Roger Parloff, Microsoft is increasingly feeling the pinch from open source software systems like Linux. FOSS evangelists tout open source software as cheaper, more reliable and just all around better than privately owned software programs, such as those produced by Microsoft.

In the past, FOSS has not been such a problem for behemoths like Microsoft. Installation and use of FOSS on a personal computer required a little more information technology acumen and flexibility than the average consumer possessed. Now, however, FOSS has become much more powerful and user friendly. This increasing market power may have resulted in Microsoft's most recent round of patent infringement allegations.

In response to Microsoft's allegations, Linus Torvalds, lead developer of the main Linux software code (the "kernel"), has challenged Microsoft to name the particular patents Linux and other FOSS allegedly infringe. This new found bravado, combined with an increasing consumer affinity for FOSS now threatens to bring the entire issue to a quickening, from which there can be only one.

Microsoft argues that FOSS infringes 235 of its patents, but has been reticent to instigate a patent infringement lawsuit. The arguments Microsoft would have to make in alleging patent infringement would be the arguments third parties would use to take down Microsoft in their own patent infringement suits. As it stands now, if Microsoft has the option of arguing software patents are not valid if it gets sued and that software patents are rock solid if it chooses to sue a third party.

The problem is that Microsoft cannot have it both ways, once it selects a strategy, the result is a foregone conclusion. If Microsoft pursues the first option, it will likely not be able to stop FOSS from continuing to eclipse privately produced operating systems. If it pursues the second option, the software industry will proceed toward mutually assured destruction, with only the patent attorneys getting wealthy. Ceteris paribus, I prefer the second option.

Actually, like most other consumers, I prefer the status quo. Unfortunately, given the steadily increasing popularity of FOSS, it appears the ultimate conclusion to this Mexican standoff is preordained. The penultimate scene from the movie Reservoir Dogs offers a pretty accurate glimpse into the near future of the software industry.

Not to throw in any spoilers, but you, as the software consuming public, are being played by Mr. Orange. Microsoft and third party software patent holders are Joe and Eddie. Although it will be interesting to see which is which, the outcome is the same.

Brett Trout

Microsoft Linux Torvalds Ballmer patent FOSS

The World's Most Expensive Trademarks

Millward Brown Optimor has just released its Brandz Top 100 Most Powerful Brands survey. It is interesting to compare these recent rankings of 2007 trademarks with the 2006 list.

2007
1. Google $66.4 billion
2. GE $61.9 billion
3. Microsoft $54.9 billion
4. Coca-Cola $44.1 billion
5. China Mobile $41.2 billion
6. Marlboro/Altria $39.2 billion
7. Wal-Mart $36.9 billion
8. Citigroup $33.7 billion
9. IBM $33.6 billion
10.Toyota $33.4 billion


2006
1. Microsoft $62.0 billion
2. GE $55.8 billion
3. Coca-Cola $41.4 billion
4. China Mobile $39.1 billion
5. Marlboro $38.5 billion
6. Wal-Mart $37.5 billion
7. Google $37.4 billion
8. IBM $36.1 billion
9. Citibank $31.0 billion
10. Toyota $30.2 billion

Brett Trout

Brandz trademarks Google Microsoft Millward Brown

Iowa Microsoft Case Settlement

Attorneys announced a settlement in the Iowa Microsoft case the day before Valentine's Day, but it was not until yesterday that they announced the details. Under the deal Judge Rosenberg preliminarily approved yesterday, consumers would receive up to $179.95 million: $16 for Windows or MS-DOS; $25 for Excel; $29 for Office; and $10 for Microsoft Word, Works and Home Essential software.

A hearing on final approval is scheduled for August 31, 2007. To receive payment, check the settlement website beginning April 25, 2007 and fill out and submit your Claim Form by December 14, 2007. Microsoft will donate half of all unclaimed proceeds to the Iowa Department of Education to provide computer hardware and software for Iowa classrooms. In Minnesota, this amounted to over $50 million for their schools.

The most amazing thing, something I did not predict, was that the payments will be made in cash. Although Roxanne Conlin is demanding $75 million in attorney fees, the fact that Microsoft will be paying cash indicates she must have done something right. Attorney fee awards in similar cases have run about 10% of the actual award. Plus, I believe even Faust might think $75 million a tad inequitable. Let's hope this is just a starting point for negotiation.

Brett Trout

Microsoft antitrust class action Iowa

Microsoft Hit With Largest Patent Jury Award in US History

Thursday, a jury in a Federal San Diego courtroom found Microsoft liable for infringing Alcatel-Lucent patented audio technology to the tune of $1.52 billion. Had the judge found Microsoft's infringement to be willful, United States patent law would have allowed the judge to triple the damage award.

Microsoft appeared surprised at the verdict, especially after having licensed the infringing technology from the German company Fraunhofer for $16 million. Microsoft went on to lament the effect the verdict would have on the digital music industry. The market, however, just seemed happy it was over, with the stock of both companies gaining ground after the verdict.

Brett Trout

patent Microsoft Alcatel-Lucent infringement

Iowa Microsoft Case Settles

Microsoft and Iowa lawyer Roxanne Colin have announced a settlement in their seven year long, $453 million, class action lawsuit. Yesterday's settlement remains confidential pending court approval - slated for hearing on April 20, 2007. Both parties touted the benefits of the settlement terms to consumers. Plans are to publicly disclose the terms of the settlement this spring.

Although neither party is disclosing the settlement, a few specifics have been disclosed. The settlement covers customers who purchased Microsoft operating systems and programs like Windows 95, Windows 98, Windows XP, Word, Excel and Office from May 18, 1994, through June 30, 2006. Under the terms of the settlement, the Iowa Department of Education receives half of all unclaimed settlement proceeds to assist Iowa schools in purchasing computers and software.

Although what prompted the settlement is unknown, I have a sneaking suspicion that Judge Rosenberg's dismissal of Roxanne Conlin's "loss of the benefits of software innovation" claim was a key determinant in plaintiff's counsel adjusting her assessment of her best alternative to a negotiated agreement. While it is nice to have an extra Polk County courtroom and judge for the next six months, I will hold off on putting my down payment on a Bugatti Veyron until I actually see my end of the settlement. I wonder if the Bugatti dealership takes Microsoft vouchers.

Brett Trout

Microsoft lawsuit antitrust Des Moines Iowa settlement

Microsoft attempts to patent RSS feed technology

Although Peter Merholz may have coined the term “blog”, Dave Winer is the true godfather of blogging. Winer not only invented the distinctive reverse chronological architecture of today’s blogs, but also invented Really Simple Syndication (RSS) which broadcasts blogs to readers. Like most great discoveries, the creation of the blog was more accidental than intentional. Looking for a way to organize a very large collaborative project, Winer hit upon the frequently updated chronological website structure.

Noting how well his new baby worked on one project, Winer expanded the architecture to assist him in delivering his digital newsletter to readers. When spam crippled his ability to distribute his newsletter via email, Winer came up with the idea of a syndication system that would allow readers to request newsletters. Today, Winer's RSS delivers billions of blog posts to voracious readers all over the world.

Mr. Winer is upset, however, over recent news that Microsoft is apparently trying to bottle and sell his free RSS elixir via the monopoly afforded under by the patent system. Yesterday the United States Patent and Trademark Office published two Microsoft patent applications covering aspects of RSS feeds. The first patent application covers "Finding and consuming web subscriptions in a web browser." The second patent application covers a "Content syndication platform used with RSS feeds."

Microsoft apparently plans to bundle the, still as yet patent pending, technology into an upcoming version of Internet Explorer. Calling such an move to monopolize feed readers for RSS technology an atrocity, Winer calls upon "everyone who has contributed anything to the success of RSS" to denounce any attempt by Microsoft to charge consumers for RSS.

Brett Trout

microsoft patent rss winer

Microsoft Pay-for-Post

The Federal Trade Commission has issued a staff opinion stating that word of mouth marketing, like blogs, are deceptive if potential consumers are more likely to trust the endorser of a product or service based on an assumption that the endorser is independent from the marketer. This opinion hits secretly-sponsored blogs right between the eyes. If a company is sponsoring you to speak highly of them, you better make your audience aware of the sponsorship. That warning also extends to marketing firms seeking to influence bloggers on behalf of their clients

I write about issues that affect my readers. People read my words. People like my words. It is all about the words. If my words told you that I was the best patent lawyer in the world, or that I offered special holiday discounts on my services, or that I offer a money-back guarantee (none of which are true), what would you think of my words? You would question their integrity and probably not read them anymore.

Blogs which merely push a product or service never gain long term traction. Great blogs offer insight, information and entertainment. Readers know great blogs. Great bloggers are: transparent; responsive to their readership; and personal. These traits engender trust and, at times, personal and professional relationships follow.

People trust blogs; they do not trust marketers. Marketers know that the secret of success on the blogosphere is sincerity. Once you can fake that, you have it made . . . or so they thought. The blogosphere police are powerful. Blog readers are comprehensive. Large companies like Wal-Mart and Sony learned to their chagrin that a forceful “outing” of your secretly sponsored blog is unpleasant. Such outings destroy years of hard-earned brand value. Such lost value dwarfs any slight benefit a fake blog could hope to garner.

If marketers cannot write their own fake blogs, what can they do? The next obvious step is to sway existing blogs with a solid readership and a reputation for integrity. As I have written about the current Iowa Microsoft antitrust case, I have received an increasing flow of information. Some pro-Microsoft, some anti-Microsoft. What I noticed was an insidious flow of pro-Microsoft propaganda not identified as being sponsored by Microsoft. Although the information started off neutral, the tone changed toward an obvious bias. That led me to check out the sender. Once I identified that the information was sponsored by Microsoft, that knowledge irreparable impaired the credibility of the information and the sender. I erred in my initial failure to make the connection, but as noted in the FTC opinion, I trusted the endorser more because I assumed the endorser was independent of Microsoft.

Tiny companies with tiny problems may get away with planting blog posts no one will ever read. For big dogs, like Microsoft, attempts to surreptitiously manipulate the blogosphere on larger issues will inevitably back-fire. Keep that play for the mainstream media.

I like Microsoft. I use their products at home and at the office. This blog would be less of a blog without Microsoft clip art. While I do not like some things about their products, they are better than anything else I have found. I am a customer by virtue of the strength of their products; I just hope they do not lose me through the furtive nature of their marketing.

Brett Trout

Microsoft, Iowa, FTC, antitrust, pay for post

Opening Statements Delayed in Microsoft Case

I just returned from listening to preliminary jury instructions in the Iowa Microsoft case. After hours of pretrial instructions being read and with many more left to read, Judge Scott Rosenberg dismissed the jury until tomorrow. While more than a couple people in the audience were bobble-heading, the jury appeared attentive and eager to get started. Opening statements should be quite impressive.

For more of my opinion on the case, check out the podcast of my appearance on the David Lawrence Show. For a differing view, check out Rush Nigut's blog.

Brett Trout

Other Related Topics:
Microsoft, Iowa, Antitrust, Roxanne Conlin, Des Moines