Thursday, December 22, 2005

The Truth Behind Visto's Lawsuit Against Microsoft












Many press reports and blogs in the last week have implied errors in their coverage of Visto's legal action, including the notion that Visto is suing Microsoft for patent infringement using the intellectual property that Visto had licensed the day before from RIM antagonist NTP. Though I haven't been involved in Visto for many years, I do know that Microsoft is actually infringing Visto's own, original patents--I know this because at least one of those patents has my name on it.

In late 1995, I attended a Network World trade show where rows of net-connected PC's had been set up for use. These PC's were running on the same large TCP/IP network as my PC client at Bessemer as well our Exchange server, and yet there was no way for me to access my corporate email and calendar. As I thought about the problem, pondering the range of computing devices that would ultimately participate in reading and writing email/PIM data, I concluded that we'd eventually need virtual desktops to synthesize and synchronize the workspaces instantiated in each device.

So I recruited the assistance of Daniel Mendez, a technologist I knew from the Harvard Computer Science Department (and now a board member of Kepler's), as well as a team of developers recruited mostly from Sun (starting with Chris Zuleeg, now at eBay). We searched exhaustively but unsuccessfully for known commercial technologies to solve this problem. So we specified and crafted our own solution that anticipated the widespread use of disparate fixed and mobile devices, and addressed many challenges, such as synchronizing through corporate firewalls. In mid 1996, with funding from Bessemer, we incorporated Visto (called RoamPage back then) to develop and sell the technology as a service (first reviewed here in 1997). 13 of us had worked in a single room (plus a smelly toilet closet) behind a flower shop in Mountain View to develop this service--our only assets were 17 computers and a very well used futon. But in the coming months we filed broad patent applications that were subsequently granted.

It took years (frankly, more than I expected) for the wireless platforms to develop the processing, storage and bandwidth Visto needed to extend the virtual desktop to mobile users, but finally (after $150 million+ of venture capital) Visto leads a robust market for device-agnostic synchronization of email/PIM workspaces.

But now that the market is finally maturing, Microsoft is doing what is does so well--bringing products to market based on other companies' technology. Microsoft does indeed have a good track record of enhancing established products--I certainly prefer Word over Wordstar, Excel over Visicalc, and Access over dbaseIV. And if Microsoft can improve upon mobile PIM synchronization, I'll be the first to subscribe, but they can't expect to infringe upon issued patents without attracting lawsuits.

That's why Visto licensed NTP's patents--to respect others' intellectual property. NTP's patents are not cited in Visto's lawsuit. NTP, in turn, invested in Visto because of Visto's growth and intellectual property--not, as some have reported, to financially prop up a licensee. Believe me, prior to the NTP deal Visto was already very, very well funded (as one must be to keep step with Microsoft's lawyers).

I expect 100 comments on this post decrying the evils of patent litigation, but I am here to bear witness that these patents were not crafted by a bunch of attorneys in order to pick deep, corporate pockets. These patents were written by programmers who were engaged in building a viable, commercial platform, and genuinely wished to protect the invention.

As an informed insider, there's one last thing I can tell you about this lawsuit: Visto is going to win.

43 comments:

  1. Visto licensed NTP's patents for one reason only--to respect the intellectual property of another innovative company.

    That argument would be a lot stronger if (1) NTP showed any actual innovation and (2) the USPTO didn't just tell the world that they screwed up and never should have granted the NTP patents in question.

    Do you really mean to suggest that Visto believes it couldn't have come up with its offering without cribbing from NTP's patents? If Visto came up with the idea completely independently, then doesn't that suggest there's a little something wrong with the patent system -- which is only supposed to award patents to ideas that others couldn't come up with independently ("non-obvious to those skilled in the art" is how they put it)?

    I'm not going to "decry the evils of patent litigation," but I will decry the evils of patents that never should have been granted, and which are then used to hold back actual innovation.

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  2. Perhaps I'll border on (or cross into) the side of "evils of patent litigation" here, but I wouldn't assume this is a slam dunk. If I worked as a lawyer for Microsoft, I would seek to show patent 6,708,221 is invalid (your link to this patent is broken btw).

    Much of the patent can be show to have prior art in source code control systems, RCS, CVS, SNV, etc. All of these deal with the details of multi-client access to central data and resolving changes from any one client across them all. The claims are also very broad, such that I would think google's new gmail mobile - or any mobile email reader - would also violate this patent. Last, like the person above, I see nothing here that is "non-obvious to those skilled in the art" - we've been working for quite some time in client/server systems and keeping data in sync is a fundemental part of any app in that world.

    Glaxstar is working on a project called OwnArea, a firefox extension for roaming personal account information - I'd be curious how you see this patent affecting them.

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  3. Anonymous3:13 PM

    This comment has been removed by a blog administrator.

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  4. Anonymous3:31 PM

    You would be nothing without NTP. And NTP would be nothing without RIM. And none of you would be anything without Microsoft.

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  5. Anonymous3:45 PM

    This comment has been removed by a blog administrator.

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  6. I read the patents involved. And honestly, I disagree with the patent. For the growth of a technology, and if you claim that you are for that, you cannot close your eyes and just patent ideas. You patented a process you created, that process is defined by code. If Microsoft stole your code, then fine, sue. But, if M$ created their own centralized server for storing and syncing data from handheld devices and created the code themselves, this is a frivolous lawsuit, and should not be supported in the tech community.

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  7. From one IP holder to another, happy hunting and good luck (especially with MS, who may drag this case out for years).

    And somebody submitted this page to Slashdot, so be prepared for trolls, flames, and personal attacks.

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  8. Trying for a Microsoft buyout?

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  9. Great post David, thanks for clearing up the misconceptions.

    I have to wonder: Is there anything for you to gain by this lawsuit? Probably not, but I'm curious.

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  10. David,

    I appreciate the candor and certainly none of us are in the position to speak to the IP involved better than you, having been part of that one-room codefest nearly a decade ago.

    That said, I hardly think I'm alone in questioning the timing. A major new round of financing, an NTP license, a competitive marketplace...why NOW?

    Also, I did comment on this directly in my blog if you're so inclined.

    Regards,

    Jason

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  11. Anonymous7:38 PM

    The link is broken.

    I really do not think Visto idea is patentable. Even so, they seem to be well funded - not to develop their company but to fight Microsoft legally.

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  12. Anonymous9:06 PM

    "In late 1995, I attended a Network World trade show where rows of net-connected PC's had been set up for use. These PC's were running on the same large TCP/IP network as my PC client at Bessemer as well our Exchange server"

    Dave, Exchange didn't ship till April 1996. I know because I was on the team. Maybe Bessemer was on the beta, or maybe this all just makes a good story. Anyway, I've been a Visto fan for years, so no complaints there.

    But I do agree with earlier comments that NTP and their patents have zero credibility at this point. Maybe Visto's patents and lawsuit will fare better, but there does seem to be clear prior art.

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  13. David, as strong as this case may be, I wouldn't count your chickens just yet.

    Patents are a funny thing. Read my story if you want to get depressed.

    http://tinyurl.com/dk6rr

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  14. Anonymous10:47 PM

    Well this is wierd, I followed the link here from Slashdot - and the site hasnt been slashdotted yet! Maybe the hiveminds taking a break over Christmas?

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  15. So first of all I want to say that I think several of the arguments in this post are spurious. Unlike copyright law patent law specifically prevents other people from using the same technology *whether or not* they developed it independently or stole your information. Moreover there is some good reason for this provision. Once someone knows a technology is possible building it becomes a lot easier, you get plenty of funding and you know you aren't wasting your time. You might disagree with this choice for patent law but it is a reasonable deciscion to encourage first creation.

    Interestingly this provision played a big part in the development of the telephone with Bell barely ecking out another independent developer (days to the patent office) but Bell got the patent and the other guy couldn't sell his phone without royalties.

    Secondly the idea that Visto couldn't be respecting patent law in it's choice to pay royalties on NTPs patents because these patents were just declared invalid just doesn't hold water. At the time they were apparently valid and it isn't Visto's job to second guess the patent office.

    This having been said I don't think this patent *should* be valid, i.e. our patent system should not grant patents at this degree of obviousness. I think the unasailable evidence of this is the fact that it seems so hard to build a reasonable system accomplishing synchronization without infringing and unlike my earlier example it is quite obvious that such a system is possible. However, this doesn't mean Visto won't win and if in fact they didn't create this for IP blackmail they aren't being evil. It is the USPTO's fault that the patent was issued Visto was likely relying on the patent office's determination and even if they shouldn't win in court they are a victim as well for having the rules suddenly changed in the middle of the game (or at least given misleading indications by the USPTO). Also if MS does the same thing it's hard for me to feel sympathetic (though I don't know if they do).

    Don't get me wrong I think giving these patents is a horrible idea but it is primarily the government's fault.

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  16. Anonymous6:23 AM

    Microsoft has long had an appetite of other's intellectual property. And they had a scorched earth litigation policy, that is until Eolas adjusted their attitude.

    Looking at Microsoft's own press releases makes it clear that there is a growing lineup of property owners who have a beef with Microsoft. Looking at the number of current cases and the disposition of past cases I estimate that Microsoft has patent infringement liabilities in the range of $20 to $200 billion.

    So is it any wonder that Microsoft is desperate to "reform" our patent system in ways which would make it virtually impossible for smaller companies to enforce their IP rights?

    Now on the issue of NTP v. RIM. If the NTP case was the only battle RIM was involved in RIM might paint themselves as a victim. But the number of complaints regarding RIM makes me think that RIM is a young punk of a company who has been caught with their hands in a number of other's IP cookie jars. The litigation history of RIM the impression that they are using Microsoft as a roll model.

    NTP holds the property of a true American inventor named Thomas Campana Jr. He died while waiting for justice. His family is still waiting for justice.

    How many jobs which should have been in America have been lost to foreign theft of American innovation? This is a huge problem which is undermining both America's economic and national security interests. Is your job going to be the next victim of loss of American ingenuity? Think long and hard about this.

    Ronald J Riley, President
    Professional Inventors Alliance
    www.PIAUSA.org
    RJR"at"PIAUSA.org
    Change "at" to @"
    RJR Direct # (202) 318-1595

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  17. Anonymous6:59 AM

    Another thing came to me, I don't know from where, but who am I that I came up with it? Anyways here goes:

    All these fits about copyright and patents are just going to make it harder and harder to do IT. After a few years, most software will be commoditized by free- and open source solutions anyways, so the money will be in support and solutions putting different systems together and tweaking them. Now, with all these laws and toll-booths, this is going to be harder and harder unfortunately..

    But this is the natural process, so resisting it will only make it harder on the patient!

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  18. Not a personal attack, but I do have a question, how can you be Jewish and an atheist? Being Jewish is not a heritage, it is a belief.

    I am sorta on the fence about copyrights and patents. I belive if you 'develop' something that fixes a problem, then you should have rights to that solution. But, it seems that too many patents have been given out to people/companies that people have thought of before and put into practice. There is proof of this type of "technology" before your mentioned time-frame. Sounds like the USTPO gave this one out blindly.

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  19. Anonymous12:35 PM

    Patents, are the only way a startup can protect from the big pigs.
    You all that care about startup to have a fair chance, need to understand this basic fact.
    From someone that had been there, had Microsoft stealing his product after 6 months of negotiations and did see others that issue patents, and force Microsoft to pay them big time for using the patent rights (not code! few of you need to learn the term of patent right licensing vs. code licensing).

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  20. Anonymous5:11 PM

    Why wouldn't MS turn around and counter sue Visto for violating MS IP portfolios? I am quite sure that MS can find one or two patents that had been infringed. It seems that Visto is threading dangerous water by doing this.

    NTP vs RIM case is somewhat different as NTP does not produce *any* product that can be sued.

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  21. I don't know... I'll stick to my guns and say that Microsoft will prevail... whether they are right or wrong... I think they just have way to much influence nowadays...

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  22. Never count out Microsoft, they always win in the end.........

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  23. In today's world, it unfortunately isn't always about "right and wrong" but about who has the deepest pockets to run somebody else to the ground. In this case, I don't think it is much of a question of who has the deepest pockets. That doesn't mean I agree with that position... it is just an observance of something all too true in corporate litigation these days.

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  24. Anonymous2:30 PM

    it sure would be great for just once to see the little start up win over the big lumbering giant.

    then again, wasn't it Bill Gates who said "good artists copy, great artists steal?"

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  25. Laugh -- Word over Wordstar.. that's a VERY easy choice! *grin*

    Damn MS...

    Shaun
    ohpunk.blogspot.com

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  26. Strictly on topic, I would have to say that this would not be the first time that M$ had infringed and /or stolen someone else's ideas.
    The entire Windows operating system is based on ideas someone else developed.
    M$ is simply really good at defending what they do and assimilating competitors, the same way Cisco has built an empire on someone else's ideas and assimilated all its' competitors, and the same way that Ma Bell (and the subsequent Baby Bells, and now the reassimilating Ma Bell) has done.
    (I know I will probably get hammered for saying those things, however true they are.) Alexander Graham Bell didn't even invent the telephone first...his invention just got patent approval first. (Bring on the hammering, Bell shills!)
    Anyway, if M$ did steal an idea/patent, then I hope they get penalized for it. However, history has shown that those with the deepest pockets always wins, especially in things like corporate litigation.
    But, viva la Visto!

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  27. I think microsoft will not be hurt by gnat-like litigation. They have survived worse in the past, such as the american government.

    But they will lose some ground in the future. Software is becoming more and more free (both from pirates and freeware openware crap which I personally use and enjoy) and others such as google have the ability to come up with new ideas.

    Maybe microsoft is just too big. This size gives the inertia to keep them stable and on track, but also prevents rapid innovation. I dont know.

    R2K

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  28. Anonymous12:11 AM

    Dude, I would love to read this blog, the content looks great. But your color choices are horrible. The green background and green links makes it hard to read. I'm sure I'm not the only one, I have never complained about such a problem before.
    mithious@yahoo.com

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  29. Thanks for spelling it out for me!

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  30. I truly hope that Visto does win. I have seen way too many of the smaller software developers put so much energy into their work, just to have to give in because they couldn't afford an equal fight. Apple is also the king of such a practice!

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  31. Anonymous6:17 AM

    I hope Visto wins, I'm switching to Linux!

    Signature:
    Get $25 free on first deposit at the world's largest poker room with 70,000+ players
    http://www.partypoker.com use code: shefa

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  32. Anonymous8:02 AM

    Good luck with patent lawsuit!

    I myself will be taking on MS one day...
    They steal each and every good idea coming from a small guy, patented or not - they don't care.
    In your case, however, can MS countersue Visto for violating one of their numerous junk patents ?

    Better be a "patent troll" these days... "Big boys" can band together to kill any product-making startup with the most brilliant patented technology.

    Small patent holder

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  33. That's funny...the 2 most interesting blogs I've come across are both done by venture capitalists. Interesting...

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  34. gbI had it for the first time,sliced in half. It was pretty good.

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  35. Lincoln Artes12:16 PM

    On Ronald Riley's comment concening Microsoft, "Looking at the number of current cases and the disposition of past cases I estimate that Microsoft has patent infringement liabilities in the range of $20 to $200 billion."

    I'd like to know where has Mr. Riley has located the total number of infringment cases against Microsoft? How does Mr. Riley estimate the potential dollar amount of liability that Microsoft has from losing these lawsuits? He gives us a meaningless range of $20B - $200B in potential liabilities. Why not, $10B - $900B instead? Oh wait a minute, my five year old son just said, "how bout one trillion to $500 zillion?" Does Mr. Riley just make-up these amounts or does he own a crystal ball that sees into the future of patent court rulings? Useless, useless and more useless guessing from this professional spin artist. What dollar amount will Microsoft be collecting from other companies who illegally infringe on their patents? Let me guess: $20B - $200B ?

    http://urbanterrorist.blogspot.com/2006/03/ronald-riley.html

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  36. In reference to Ronald Riley's comment about Microsoft, " Looking at the number of current cases and the disposition of past cases I estimate that Microsoft has patent infringement liabilities in the range of $20 to $200 billion". I'd like to know how Mr. Riley calculates $20B - $200B in potential liabilities against Microsoft for infringing on other's patents? Why not $100M - 900B? Oh, wait a minute, my five year old just said, "why not 17 zillion to 100 katillion?" Does Mr. Riley just make-up these numbers or does he have a crystal ball that sees into the future of patent court rulings? Useless, useless and more useless information once again from Mr. Riley. Maybe he'd like to guess how much Microsoft will collect in damages from others who infringe on their patents? Maybe it's $20B -$200B?

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  37. Anonymous7:58 AM

    Since patent litigation costs start at two million and in cases where there are very deep pockets as is the case with Microsoft can easily run tens of millions there is a threshold for value of infringement which must be met to make it economically worthwhile to go after an infringer. In other words when dealing with a company like Microsoft no one will litigate unless the recovery is in terms of tens to hundreds of millions of dollars.

    There are forty or so pending cases and Microsoft has a reputation for running fast and loose with others intellectual property (IP).

    Now that Microsoft has been bruised by Eolas there will be more people who own IP stepping up to the bat. There will probably be hundreds of cases over the next few years and based on the likely minimum value and the number of cases, and rather the cases are settled short of litigation or go to trial where the judgments are likely to be much greater, these are all factors in my estimate of $20 to $200 billion.

    If you have a better way of estimating the liabilities I would be happy to hear why you think the numbers will differ.

    Ronald J Riley, President
    Professional Inventors Alliance
    www.PIAUSA.org
    RJR (at) PIAUSA.org
    Change "at" to @
    RJR Direct # (202) 318-1595

    Ronald J Riley, Exec. Dir.
    InventorEd, Inc.
    www.InventorEd.org
    RJR"at"InvEd.org
    Change "at" to @

    ReplyDelete
  38. Anonymous8:00 AM

    Since patent litigation costs start at two million and in cases where there are very deep pockets as is the case with Microsoft can easily run tens of millions there is a threshold for value of infringement which must be met to make it economically worthwhile to go after an infringer. In other words when dealing with a company like Microsoft no one will litigate unless the recovery is in terms of tens to hundreds of millions of dollars.

    There are forty or so pending cases and Microsoft has a reputation for running fast and loose with others intellectual property (IP).

    Now that Microsoft has been bruised by Eolas there will be more people who own IP stepping up to the bat. There will probably be hundreds of cases over the next few years and based on the likely minimum value and the number of cases, and rather the cases are settled short of litigation or go to trial where the judgments are likely to be much greater, these are all factors in my estimate of $20 to $200 billion.

    If you have a better way of estimating the liabilities I would be happy to hear why you think the numbers will differ.

    Ronald J Riley, President
    Professional Inventors Alliance
    www.PIAUSA.org
    RJR (at) PIAUSA.org
    Change "at" to @
    RJR Direct # (202) 318-1595

    Ronald J Riley, Exec. Dir.
    InventorEd, Inc.
    www.InventorEd.org
    RJR"at"InvEd.org
    Change "at" to @

    ReplyDelete
  39. Lincoln Artes3:18 PM

    For Ronald J. Riley,

    I would never speculate on the number of patent infringement lawsuits that Miicrosoft has pending. Why? Because I don't know. Neither do you. You said that "looking at the current cases", "Microsoft has liabilities in the range of $20B - $200B."

    Where are you "looking" to find these cases? Do you have access to an international databases that give you the total number of cases pending against Microsoft in Federal and International Patent Courts? Of course you don't. You say that "Microsoft has a reputation for running fast and loose with others intellectual property". Well, Mr. Ronald Riley, I think you have a reputation for running fast and loose with your mouth.

    Next time you start throwing around a range of liabilities with a $180 billion dollar differential, have some SPECIFIC facts on your side, so you won't look so foolish.

    It's one thing, if you want to lambast Microsoft for stealing patent rights, but it's another thing to try to convince folks that you have expert knowledge about this situation when you really don't.

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  40. Actually I do have specific knowledge in that Microsoft publicly acknowledged that they have about forty pending cases in their press release demanding that the patent system be reformed in ways which would mitigate their liabilities. Also, I hear from many of the inventors who have had their patents pirated, including those who are going head to head with Microsoft. Now I would be the first to admit that I do not have as clear a picture of the scope of Microsoft's pirating activities as they do. And that is why there is such a large range.

    I do believe that I have a better handle on the issue than you do, that is unless you work for Microsoft in a capacity which makes you privy to the scope of their patent pirating liabilities.

    By the way, did you know that both Microsoft and Research in Motion (RIM-Blackberry) were caught committing fraud on the courts?

    Ronald J Riley, President
    Professional Inventors Alliance
    www.PIAUSA.org
    RJR (at) PIAUSA.org
    Change "at" to @
    RJR Direct # (202) 318-1595

    Ronald J Riley, Exec. Dir.
    InventorEd, Inc.
    www.InventorEd.org
    RJR"at"InvEd.org
    Change "at" to @

    ReplyDelete
  41. Anonymous1:28 PM

    I don't work for Microsoft Mr. Ronald Riley and I don't apppreciate your accusatory tone. You don't have any more knowledge about Microsoft or RIM than the average Joe on the street. Every Fortune 500 company has patent law suits. Since Microsoft is one of the largest companies in the world it makes sense that they would have more patent lawsuits than a small cap company. Did you ever consider how many of these lawsuits are "nonsense" lawsuits? Most of them are by small inventors with narrow claims that see dollar signs when they sue Microsoft. The real question is how many of these nonsense lawsuits are dismissed? How many actually go to court? How many cases does Microsoft win? Those are the real questions here. Maybe you can supply some real answers instead of just spitting out rhetoric about the big, bad patent pirates! If you were earning $16 billion dollars per quarter, you'd be getting sued by a lot more than 40 people. Only companies and people who are failures and broke don't get sued. So, I guess you haven't been sued lately. Any more stupid comments, Mr. Ronald J. Riley?

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  42. Anonymous1:29 PM

    I don't work for Microsoft Mr. Ronald Riley and I don't apppreciate your accusatory tone. You don't have any more knowledge about Microsoft or RIM than the average Joe on the street. Every Fortune 500 company has patent law suits. Since Microsoft is one of the largest companies in the world it makes sense that they would have more patent lawsuits than a small cap company. Did you ever consider how many of these lawsuits are "nonsense" lawsuits? Most of them are by small inventors with narrow claims that see dollar signs when they sue Microsoft. The real question is how many of these nonsense lawsuits are dismissed? How many actually go to court? How many cases does Microsoft win? Those are the real questions here. Maybe you can supply some real answers instead of just spitting out rhetoric about the big, bad patent pirates! If you were earning $16 billion dollars per quarter, you'd be getting sued by a lot more than 40 people. Only companies and people who are failures and broke don't get sued. So, I guess you haven't been sued lately. Any more lame comments, Mr. Ronald J. Riley?

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  43. Anonymous7:44 AM

    I found this excellent blog that is a compilation of Ronald Riley's comments about the patent system, inventions and companies he doesn't like:

    http://ronaldjriley.blogspot.com/

    ReplyDelete