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Source link: http://archive.mises.org/8412/patent-hawk-sues-microsoft-former-client-for-patent-infringement/

“Patent Hawk” Sues Microsoft, Former Client, for Patent Infringement

August 20, 2008 by

As reported on The Patent Prospector blog,

Inventor Gary Odom, founder of Patent Hawk, has asserted 7,363,592 against Microsoft. ’592 claims a feature of the tool groups used in the Office 2007 tool ribbon.

Now, as noted on the Patent Prospector blog, “Microsoft was a Patent Hawk client for years. They had every opportunity for friendly [sic] discussion. The words ‘patent tax’ were used, and Microsoft chose a path consistent with their corporate culture.”

A few observations. First, it is striking that Odom is suing is former client. Second, Patent Prospector whines that Odom just wanted a “friendly” discussion, and big ole’ mean Microsoft wouldn’t play ball. Hint: it’s not “friendly” when you threaten to sic the state thugs on someone if they don’t pony up. If the thugs in power didn’t make it legal, it would be called “extortion.”

Third, Patent Prospector implies that there’s something wrong with viewing such a threat as a “tax”. There’s not. That’s exactly what it is. Odom threatens his former client with severe financial damage by the state’s thugs, and they call it a “tax.” Hey, unfair! They are supposed to just pay their former attorney! Patent Prospector whines that Microsoft’s “corporate culture” is a problem here, in viewing such demands as a tax. Would that more companies would openly call these extortortionate demands what they are.

But maybe we’re a bit unfair to just take Patent Prospector’s word for what really happened between Patent Hawk/Odom and Microsoft. Oh, wait–Patent Prospector is also apparently run by Patent Hawk/Odom.Correction: In the original post, I referred to Odom as a patent attorney. My assumption was wrong. After someone suggested to me Odom was not a patent attorney, but was a patent agent instead, I checked on the PTO attorney/agent roster and could not find him. On his Patent Prospector site, he describes his fellow blogger as a patent agent, but not himself. And on the site for Platinum Patents, his “patent prosecution boutique,” he describes his colleague as a patent agent, and himself as “a pro se prosecutor of his own inventions”. So Odom is apparently a “technical consultant” who advises on a variety of patent-related matters.

I think I just may start asking patent attorneys my company hires to include a little clause in the retainer agreement: “and we promise not to sue you, our client, for patent infringement in the future.”

Incidentally, Odom and I had a disagreement previously about the patent system, in the comments to this post. Odom takes the typpical pro-patent position. Unsurprising given that he is “a former professional economist who drove his interest in technology into a career in computers, electronics, and software development, areas he made his profession for 17 years. Gary is a long-standing member of IEEE and ACM.”

Regarding the typical approach of engineers to policy and their tendency toward scientistm, see my posts Engineers’ Syndrome and Galambos and Other Nuts.

Update: See Techdirt’s post by Mike Masnick, Microsoft Sued Over User Editable Toolbar Patent, in particular the comments on the “obviousness” of the claims of the Odom patent. Masnick notes there that Patent Hawk (Odom) has “been known to comment here on occasion, employing the style seen all-too-often among patent system apologists commenting on Techdirt posts: insult repeatedly and broadly, offer no actual points, refuse to actually counter anything we say, provide absolutely no evidence and (for good measure) insult again.”

For example, as in this previous post about the poor quality of patent applications, where Odom posted: “This little op-ed piece is ignorant tripe, none of it having any factual basis. Nothing but fantasy based on rumor and imagination. Pathetic, really.

Masnick’s reply:

Hi Patent Hawk. Here in the real world, when we disagree with something, we actually make an “argument.” It’s called explaining why something is incorrect and presenting counter evidence.

I’ve noticed a pattern when I talk about patents. Most (though, certainly not all) of the folks who disagree with me simply stop by and toss insults and never present a shred of evidence to support their position.

It suggests to me that I’m clearly on the right track.

Indeed! See also Odom’s similar style of engagement–or lack thereof–with me on the comments to this post.

See also my comment on that thread:

Note one of the derisive comments on Hawk’s blog, which concerns this patent’s parent patent:

How about the PARENT patent? #7,036,087 that issued on 04/25/2006.

Why didn’t you try to assert this one against micro$oft or others? Or did you? Or was it already invalidated? :)

For the record, here are the issued claims from the parent patent #7,036,087.

1. Software from at least one computer-readable medium automatically rearranging at least one tool based upon relative usage frequency of tools within a toolbar group.

2. Software according to claim 1 preventing at least one tool from being rearranged.

3. Software from at least one computer-readable medium automatically rearranging at least one group of a tools on a toolbar based upon aggregate usage frequency of tools within a tool group compared to another group.

4. Software according to claim 3 preventing at least one group from being rearranged.


Duh! August 20, 2008 at 3:58 am

Microsoft is no bastion of free enterprise. Their anti-competitive, and illegal acts, have lead to a number of convictions and fines.

If the patent system is a breeding ground for patent-trolls then that is what needs reform. However evidence does not support your claims that the convicted monopolist microsoft have been wronged.

(Look how I take your appeal to authority, and turn it into an ad-hominum attack)

Person August 20, 2008 at 10:50 am

Not gonna get worked up, not gonna get worked up, not gonna get worked up, don’t have to correct every error I spot, don’t have to correct every error I spot, don’t have to correct every error I spot

Cathy Cuthbert August 20, 2008 at 1:12 pm

Wow, Microsoft hoisted on its own petard. Remember Mike Rowe?

Microsoft has risen to its position of dominance through at least two government protection devices: copyrighting its software–which is ridiculous, if anything it should be patented, and anyway, the copyright/patent protection is what you are complaining about above–and a perversion of contract law. I am always surprised when free market types defend Microsoft so vehemently. I think this is because of the anti-trust action which was, of course, wrong. However, Microsoft is not a case study of the free market at work, and the belief that it is as result of it’s anti-trust victimization is a distortion of the big picture. I am reminded of Albert Jay Nock and his comments about the people who thought that the history of railroad expansion is an example of the success of capitalism.

That doesn’t change the fact that this guy is using extortion. Just pointing out why I and probably many others have no sympathy.

Cathy Cuthbert

Allison S May 18, 2009 at 12:19 pm

I must say that I am kind of “pro patent”, too. How else can an inventor or creator get proper credit for the ideas they come up with?

I think having stronger patents could help make patent enforcement easier and help to minimize patent infringement. If the rules were clearer up front, maybe less companies would be willing to steal others’ ideas and would just work out a deal to pay for them up front.

N June 1, 2010 at 10:56 am

Microsoft, yes they have their share of senseless trademark suing(but hey at least they did not sue an apple selling company), but nonetheless patent trolling is already a menace to innovation and should be stopped.

Observer December 21, 2009 at 10:07 am

I wouldn’t listen to Mike Masnik’s opinions about how to toast my bread, much less something important like how to get the black stuff out from under the rim of my toilet bowl.

Listening to him on patent related issues? Just a second…


There, now you were saying?

Francis Kinch March 29, 2011 at 5:42 am

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